Amendment 7

Overseas Operations (Service Personnel and Veterans) Bill - Report – in the House of Lords at 4:58 pm on 13 April 2021.

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Lord Thomas of Gresford:

Moved by Lord Thomas of Gresford

7: Clause 8, leave out Clause 8

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

My Lords, in speaking to these amendments, my first point is that legitimate claims for misconduct by British troops involved in overseas operations are a fact that has to be faced, however unpalatable that is. According to a Written Answer given to me by the noble Baroness, Lady Goldie, on 15 June last year,

“in excess of 1,330 claims” have been brought against the MoD since 2003, and they have been settled at a cost of some £32 million. Nobody suggests that these were not proper claims. Indeed, the noble Baroness said:

“The claims received focus predominately on alleged unlawful detention but many incorporate allegations of mistreatment at the hands of British military personnel.”

These claims by foreign nationals are not for negligence, as is the case with claims by British soldiers against the MoD. The House should not assume, because a discredited solicitor who has been removed from the role brought a number of claims that were successfully struck out under our legal system as vexatious, that every claim is tainted. There may be some who believe that our courts should not be open to civilians of a different colour or creed complaining of the misconduct of our military, but that is not a majority view.

Secondly, it must be appreciated that the normal limitation period for damages for personal injury is three years. For claims for damages under the Human Rights Act, for unlawful detention, for example, it is for one year. The consent of a judge must be obtained to disapply the limitation period for the commencement of actions, and based on the principle that it is equitable to both parties to disapply the time limit. In exercising his discretion, the judge has to take into account all the circumstances of the case. Particular factors are set out in Section 33(3) of the Limitation Act, the second of which is:

“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 allowed by section 11 … or … section 12” of that Act. The length of the delay, the reasons for it, and the strength and importance of the case to both sides are involved in the judge’s exercise of his discretion.

Clause 8 of this Bill, headed “Restrictions on time limits to bring actions: England and Wales”, alters the 1980 Act in its provisions to restrict the court’s discretion to disapply time limits for actions in respect of personal injuries or death that related to overseas operations of the Armed Forces. It will be noted that no distinction is made between actions brought by citizens of the country in which the overseas operations are taking place—foreign nationals—and actions by our own military personnel in that country for damages for, for example, negligence. It follows that every soldier injured on Salisbury Plain has greater rights to commence actions for damages for negligence than soldiers injured in overseas operations in similar circumstances. I have failed to discover any principle to justify this discrimination. This will be addressed further on Amendment 13.

Other provisions in Schedules 2 and 3, and in Clause 11 on human rights actions, provide that, in considering whether to disapply the ordinary limitation period of three years or one year, the court is to have particular regard not only to the factors of delay to which I have referred, but specifically to the ability of members of Her Majesty’s forces who remember relevant events fully or accurately or who have recorded or retained records of such events.

They must also have regard to the impact of the proceedings on the mental health of a witness or potential witness who is a member of Her Majesty’s forces. These are extraordinary provisions that require the court to consider extending or disapplying the ordinary time limits to weigh in the balance the legitimate claim of a victim injured by

“mistreatment at the hands of British military personnel”— to use the words of the noble Baroness in the Question I referred to—against the difficulties of a military person in remembering or recording the events, or the possible effect on his mental health in giving evidence, when he might be the person who had inflicted the complained-of mistreatment on the claimant in the first place. On the one hand, there are injuries to the plaintiff or claimant; on the other, the effect on the memory or mental health of the person who inflicted the injuries.

I remember attending the Montgomeryshire assizes in Welshpool in my youth, when behind the judge’s chair there was a three-foot-high statuette of the figure of Justice, blindfolded, of course, and holding the scales in her hand—except that they were tipped down permanently to one side. That is what these provisions are like.

I do not propose to seek a vote on these two amendments in my name. Had I wished to do so, I would have wished to include “Leave out Clause 11,” which deals with the Human Rights Act claim. My name is attached to the amendment in the name of the noble and learned Lord, Lord Falconer, but there are specific inquiries I wish to make to clarify what is not clear in these clauses.

What is the meaning of the “relevant date” or “date of knowledge” from which the six-year long-stop starts to run? How is that date impacted by delayed knowledge of the manifestation of harm resulting from the act which is the subject of the claim—somebody contracting an illness much later? What is the effect of delayed knowledge of the claimant’s ability to bring a claim before the UK courts at all? What happens if the six-year period is interrupted by events totally outside the control of the claimant—for example, sickness, recovery from wounds or inability to secure legal advice?

The Government must face the impression given by these sections of the Bill that they are publicly in denial of any misconduct on the part of British troops while settling hundreds of meritorious claims behind the scenes in secret, selecting a category of cases simply on the basis that they arise out of overseas operations and applying to this category a unique bar—a brick wall—where the discretion of the court can no longer be exercised. However just and equitable it would be, it does nothing for the reputation of this country, for the rule of law or for justice. I beg to move.

Photo of Lord Faulks Lord Faulks Non-affiliated 5:00, 13 April 2021

My Lords, Amendments 7 and 8 are, in effect, wrecking amendments, while Amendment 13 seeks to distinguish the position of service personnel and other potential claimants. I expressed the view in Committee that I was not convinced that the provisions in Part 2 would make all that much practical difference. The primary limitation period for personal injuries is three years, as the noble Lord, Lord Thomas, has just pointed out, except in so-called delayed date of knowledge cases, as provided by Sections 11 and 14 of the Limitation Act 1980. There is a discretion to disapply the limitation period under Section 33 of the 1980 Act. As he also pointed out, claims under the Human Rights Act have to be brought within one year, with a discretion to extend in rather limited circumstances.

My experience of personal injury claims as a barrister is that courts need considerable persuasion before they extend the three-year period and that the burden rests on a claimant to persuade a court that that primary limitation period should not apply. Limitation periods exist to reflect the difficult balance that has to be struck between allowing everyone to put a line under actual or potential claims and the fact that some claimants will have good reason for delay.

The provisions in Part 2 provide a long-stop, subject to a delayed date of knowledge provision. It seems that claims arising out of overseas operations present particular difficulties for all those involved, and I respectfully differ from the comment made by the noble Lord, Lord Thomas, about Salisbury Plain, particularly in overseas operations where the theatre of operations has moved on or changed its location and it may be extremely difficult to investigate, on either side, the basis of any such claim.

As I said, the provisions are not likely to have much practical effect, but they will nevertheless have some indirect effect in encouraging appropriate claims to be brought with as much speed as is practical. They will also provide a degree of reassurance to our service personnel that a time will come when they will be involved in one way or another in so-called late claims. The noble Lord, Lord Thomas, referred to some uncertainty over what the date of knowledge might be which would defer claims. Subject to what the Minister says, I understand it to be concerned with cases where, for example, there is latent disease that could not be reasonably known about by a claimant at the time; for example, somebody who sustains mesothelioma as a result of exposure to asbestos dust or who has some other illness or injury that becomes manifest only some years after the event in question.

I am not attracted to Amendment 13 either. In Committee, the noble Baroness, Lady Chakrabarti, suggested that I was concerned only with claims brought by the military and not with those brought by the non-military or civilians in, say, Iraq or Afghanistan. That was not in fact what I said or thought. It is therefore something of an irony that this amendment would make that very distinction. I am unaware of any such provision in any other area of the law of limitation of actions—that is, a provision that distinguishes between classes of claimant. There are of course provisions distinguishing the position of a claimant who has not attained his or her majority or who lacks mental capacity. However, it would set a most unfortunate precedent somehow to elevate a particular claimant to have a special status.

The provisions in Part 2 ought to apply in precisely the same way across the board to whomsoever is involved in claims arising out of overseas operations and provide equal protection for all of them. This amendment is discriminatory and should not be included in the Bill. Surely our service personnel want to be treated fairly, rather than to be given some special privileged litigation status. I will listen with great interest to what the noble and gallant Lords who are to follow in this debate have to say about the matter, but for the moment I am unconvinced that any of these amendments should be made to the Bill.

Photo of Lord Hope of Craighead Lord Hope of Craighead Judge

My Lords, I will add just a few words to what the noble Lord, Lord Thomas of Gresford, said in support of Amendment 13. The provisions to which it is addressed which are of particular interest to me are in Schedule 3, which seeks to amend the legislation that applies in Scotland to the same extent to that in Schedules 2 and 4, which apply to the other jurisdictions. The crucial point is the imposition—for such it is—of an absolute prescription of six years.

As we know, the three-year limitation period that applies at present is accompanied by protections that enable the court to extend the limitation period if it is justified by the circumstances—the date of knowledge exception. It seems that the Bill applies a hard-edged cut-off that makes no allowance whatever for extenuating circumstances. I could understand it if this proposal had been accompanied by a carefully conducted research programme into how the three-year limitation has worked in practice over the years, identifying on how many occasions the period has been extended for more than three years, and why and at what point the extensions have been sought and justified. We are, of course, in this case, and indeed throughout the Bill, dealing with the consequences of operations that have been conducted overseas, maybe under very difficult circumstances. Gathering together enough information to determine whether a claim would be justified, let alone to bring together all the information needed to justify bringing the claim before the court out of time, may take much more time and effort than is needed in the more benign domestic cases. That is the reason for seeking the discrimination to which the noble Lord, Lord Faulks, referred.

Without this amendment, the proposal in the Bill is a bit of a hostage to fortune. We simply do not know what its effect would be—maybe not very great, as the noble Lord, Lord Faulks, said, but if it is there, it would seem to be unfair. I cannot see anything wrong in bringing out a class of individuals to whom this amendment is directed. In principle, what is wrong with identifying a particular class of claimants, particularly where they can be seen to be, in particular situations, disadvantaged, as we are contemplating in this Bill? For these general reasons, I am inclined to support Amendment 13.

Photo of Lord Hendy Lord Hendy Labour 5:15, 13 April 2021

My Lords, it is an honour to follow the noble and learned Lord, Lord Hope of Craighead. I too support the amendments. In particular, I support wholeheartedly Amendments 7 and 8, which, if accepted, would obviate the need for Amendment 13. I differ from the noble Lord, Lord Thomas of Gresford, and the noble and learned Lord, Lord Hope of Craighead, in relation to Amendment 13, which in my view does not go far enough.

Clauses 8 and 9 would have the effect of preventing a number—a small number, I accept—of meritorious civil actions being brought by service personnel, or their estates and dependants, against the Ministry of Defence, where the latter has negligently caused their injury or death. I see no justification for imposing harsher limitation provisions for actions in respect of personal injuries or death that relate to overseas operations of the Armed Forces than in relation to other civil claims. The factual matrix in which a claim arises will always be a crucial factor in the determination of the court’s discretion to allow late claims. The imposition of the time bar in Clauses 8 to10 will undermine the confidence of military personnel who might be injured or die on overseas operations. They knowingly and bravely take the risk of injury or death in enemy action, but they do not consent to risks created by the negligence of the Ministry of Defence, as in the case of my former client, the mother of a soldier killed by a high-explosive shell fired at his tank from another British tank, which had mistaken it for the enemy. After interminable investigations, belated disclosure of documents and the work of our expert, the case was made that the Ministry of Defence was at fault for a long-standing failure to fit identification equipment and for a consistent failure to train tank commanders properly in identification.

The Ministry of Defence eventually settled the case with a substantial payment but no admission of liability. It took years. Had the proposed regime of Clauses 8 to 10 been in place, my client’s action might never have got off the ground. I feel I owe it to those who might in the future be in the sad position of my former client, having lost a son or daughter, to resist the inclusion of these clauses.

What can be the justification for imposing a bar on such claimants, a bar which does not apply to any other claimants other than in relation to members of the Armed Forces who suffer personal injury or death on overseas operations? The ostensible purpose is to bar vexatious claims but, with respect, that is nonsense. Bill or no Bill, there will always be unmeritorious claims. The courts have a powerful armoury of mechanisms for throwing them out. They do not need the blunt instrument of Clauses 8 to 10. Although those clauses would time bar some vexatious claims, they would equally time bar meritorious claims. That is not forgivable. It is no answer to say that there would be few of the latter. There should be none.

In any event, as the noble Lord, Lord Thomas of Gresford, pointed out, all claims are subject to the Limitation Act, which imposes strict time limits on them. These may only be exceeded by express permission of the court—an exercise of the court’s discretion which is subject to specified and comprehensive conditions under that Act.

The imposition of the time bar in Clauses 8 to 10 is likely to undermine the confidence of military personnel who might be injured or die on overseas operations. They should not be subject to hurdles to which other claimants are not.

I agree with the sentiment of Amendment 13, which seeks to exempt service personnel from the time bar of Clauses 8 to 10. However, its shortfall is that it fails to bring the estate and dependants of such personnel within the exemption, thus allowing the time bar to apply to those in the position of my former client. Amendments 7 and 8 are therefore preferable. I had hoped that those who tabled them would have pressed them to a Division.

Photo of Lord Boyce Lord Boyce Crossbench

My Lords, Amendment 13 is about the six-year time limit imposed by the Bill on those who have been engaged on overseas operations, and the ability of such servicepeople to bring any grievances against the MoD after that time. As we have already heard, this would have the perverse effect of limiting the rights of individual service personnel by restricting their access to legal remedies for harms caused by their employers. This would not apply to their counterparts not engaged on overseas operations.

In Committee, the Minister’s comment that, based on past statistics, this might apply only in a very small number of instances was specious. The Armed Forces are all of one company and thus should all be treated the same. Even if only one person were to be affected, he or she should not be discriminated against. It cannot be just for such situations to be allowed, so I support Amendment 13.

Photo of Viscount Trenchard Viscount Trenchard Conservative

My Lords, I had intended to involve myself deeply in the passage of this important Bill through your Lordships’ House, although I hesitate to speak on matters about which I am much less qualified to pronounce than the learned and gallant noble Lords who have made such a great contribution to our debates on the Bill. I have found it difficult to keep up with and to remain fully involved in this Bill as well as in the Financial Services Bill. For most of my working life, I have been a full-time banker; on the other hand, my military experience is limited. I was a TA soldier for 10 years and, more recently, have been honoured to act as an honorary air commodore in the Royal Auxiliary Air Force.

I very much welcome the Government’s decision to introduce the Bill and to deliver on our manifesto commitment to end vexatious legal claims. I also understand and agree with the Government’s intention in Part 2 to ensure that claims are brought sooner. This should mean that service personnel and veterans will not be subjected to criminal investigations that may be triggered by civil claims. I therefore cannot support Amendments 7 and 8 in the names of the noble Lord, Lord Thomas of Gresford, and the noble Baroness, Lady Smith of Newnham, which have the effect of wrecking this part of the Bill in its entirety.

However, I am impressed by arguments by the noble and gallant Lord, Lord Boyce, and the noble Lord, Lord Thomas of Gresford, that the courts should continue to be allowed to hear personal injury claims against the Crown even after the six-year time limit has expired. I know enough about the culture within the Armed Forces—a major reason for the high regard in which they are held—to agree that it may also create situations where someone may be told that he cannot make a claim, when actually he can, but he will still believe and accept that he cannot. I am therefore sympathetic to the purpose of Amendment 13 but look forward to hearing my noble friend the Minister’s response to the powerful arguments put forward in its support.

Photo of Baroness Chakrabarti Baroness Chakrabarti Labour

My Lords, I support these amendments, with a very strong preference for Amendments 7 and 8, although I understand that they will not be pressed; half a loaf is better than no bread. It is clear to me that a combination of rules and discretion is what the law is. This is the protection against arbitrary action, and I have heard no compelling argument whatever at any point in the proceedings relating to this legislation for limiting the discretion of the courts completely, particularly in the light of the sorts of cases described by my noble friend Lord Hendy.

However, I was interested in the newly expressed concerns of the noble Lord, Lord Faulks, about discrimination; his view of equal treatment under the law is novel to me. He seems to be concerned about discrimination in relation to a Bill, which he supports, that is inherently discriminatory. He is concerned about giving extra protection to a particular class of claimant—namely, veterans and personnel, who are supposed to be protected by this legislation. But he is not concerned, it would seem, about giving special protection to a class of defendants—the MoD, the Executive—which is the initiator of the legislation as well as the civil defendant. He is not concerned about giving special protection and limitations to criminal defendants in the military, but he is concerned to give the protection offered by Amendment 13 when it is not being offered to overseas civilians, yet he does not support Amendments 7 and 8. This is not levelling up; it is levelling down.

As I say, I would very much prefer Amendments 7 and 8 to be pressed, but in their absence I will support Amendment 13. The Government brought forward this legislation with a promise to give protection to service personnel and veterans but, instead, if they do not go along with at least Amendment 13, it will protect the Exchequer—the Ministry of Defence—from the very people that it claims to protect.

Photo of Lord Stirrup Lord Stirrup Crossbench

My Lords, I will speak to Amendment 13, to which I have attached my name. Its purpose is to ensure that service personnel are not debarred by time from pursuing claims against the Government for harms suffered on overseas operations. It seems strange to me that a Bill with the avowed purpose of providing government reassurance to service personnel seems intent on preventing those very personnel from seeking redress from that same Government. This may not be the intention, but it is one of the potential consequences of the Bill as it is currently worded.

In responding to a similar amendment in Committee, the noble and learned Lord the Advocate-General for Scotland, argued against it because it would have very limited effect. At Second Reading, the Government said that some 94% of service personnel and veterans who brought claims relating to events in Iraq and Afghanistan had done so within six years. He later confirmed that this figure included those who had brought a claim within six years of the date of knowledge. My response is to repeat the question that I posed on that occasion, and which was never answered: are we to assume then that, had the proposed timescale been in effect, the Government believe that it would have been acceptable for the other 6% to lose the opportunity to pursue their cases?

The Government also say that the vast majority of claims by service personnel relate to events in the UK, not to overseas operations. I really fail to see the relevance of this point. To argue that only a small number of service personnel would suffer injustice does not seem to me a respectable position for a Government to take at any time, let alone in a Bill that is supposed to provide support and reassurance to those people.

The noble and learned Lord the Advocate-General for Scotland also said in Committee that one of the purposes of Part 2 was to introduce a longstop that would encourage the earlier laying and investigation of civil claims and any associated criminal investigations. This seems remarkably similar to the aim of Part 1. There is, however, a very different approach to the matter of timescales. Part 1 does not introduce a significant legal watershed. Complaints can still be brought to prosecution subject to certain tests that ought to be applied with or without the Bill. The time limit placed on complaints brought by service personnel or veterans is of a very different character. It is not a high bar: it is an impassable wall.

I accept that Part 1 deals with criminal prosecutions and that Part 2 is concerned with civil claims, and that this might therefore give rise to different rules. It seems strange, however, that in a Bill that is supposed to support our Armed Forces, their civil claims are subject to more stringent rules than the complaints brought by others against them. Perhaps the major objection that the Advocate-General advanced against an amendment of this nature, however, was that it would treat service personnel and veterans as a separate class from others. Just so—is this not exactly what the Bill overall seeks to do? If such a distinction is insupportable in this part of the Bill, why not in the rest of it? Part 1 seems to offer no particular protection to MoD civilians employed on operations, even though they could conceivably be accused of criminal offences, yet that is not regarded as a flaw in the Bill.

There is a widespread impression that the MoD is using the Bill to protect itself from claims, rather than—or, at least, in addition to—protecting service personnel and veterans. The easiest way for the Government to correct this—as they would see it—misleading impression is surely to accept Amendment 13.

Photo of Lord Browne of Ladyton Lord Browne of Ladyton Labour 5:30, 13 April 2021

My Lords, it is a great pleasure to follow the noble and gallant Lord, Lord Stirrup. Not for the first time, I found his contribution compelling and I hope the Minister did as well.

During the passage of this legislation, it has become clear that the application of this six-year unextendable deadline for claims by members of our own Armed Forces— principally against the MoD—is probably an unintended consequence. In Committee, the noble and learned Lord, Lord Stewart of Dirleton, the Advocate-General for Scotland, said:

“The purpose of the limitation longstops is not to stop service personnel from bringing claims”.

He went on to say 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 … There is therefore no objective or functional reason why claims from service personnel and veterans should be excluded from the longstops”.—[Official Report, 9/3/21; col. 1596.]

A plain reading of that explanation is that the Government are compelled by obligations under the ECHR to apply these longstops to all personnel in respect of claims that arise from their deployment on overseas operations. It is that argument that I wish to test.

On 11 March, in the debate on Amendment 32 in my name—supported by the noble and gallant Lord, Lord Houghton of Richmond, and the noble Lord, Lord Clement-Jones—I raised the issue of discrimination in Part 1 between those who are deployed on overseas operations but operate remotely, such as UAV pilots, and those who are deployed on overseas operations and operate physically in the theatre. The purpose of the amendment was to explore whether the consequences of the stated intention of the integrated review—that new technology be integral to the future of UK defence—has been fully thought through in this legislation, and whether the discrimination between those operating remotely and those deployed in the theatre is sustainable in the light of the implications of this technology being used by service personnel deployed in overseas operations.

In response to the debate on that amendment and in a subsequent letter of 25 March, the noble Baroness, Lady Goldie, sought to assure me and others that the Bill was future-proofed and that the full implications of new technology and its deployment had been thought through. I am far from convinced that that is the case and will continue to press the Government for a comprehensive review of these issues.

As well as writing, the noble Baroness graciously offered and arranged for me a virtual meeting with her and senior officials to discuss many of the complex issues raised in the debate and referred to in her letter. That discussion is ongoing. I await a further letter of clarification, and I have been offered and have accepted a second detailed briefing with senior officials. It is likely that we will return to this in the Armed Forces Bill.

However, relevant to this debate, the letter of 25 March includes the following:

“When we were developing the policy intent for the Bill, we considered very carefully those flying UAVs in an overseas operation but from within the UK. We determined that, although UK-based UAV pilots would be considered to be part of an overseas operation, it could not be said that they would be at risk of personal attack or violence (or face the threat of attack or violence), as would be the case for an individual deployed in the theatre of operations. Nor would the difficulties of recording decisions and retaining evidence be the same as when deployed within the theatre of an overseas operation. We therefore determined that personnel in these roles should not be within the scope of this Bill. It is important to recognise that this decision is not limited only to UAV pilots. There may be others, in future … to whom these measures would equally not apply … When this technology is used by service personnel deployed on an overseas operation, they will be covered by the Bill, but it is important to make a distinction between those that are deployed in a high threat environment, and those that aren’t, due to the very different operating conditions.”

I repeat:

“We therefore determined that personnel in these roles should not be within the scope of this Bill … this decision is not limited only to UAV pilots … There may be”— unspecified—

“others, in future, who participate in an overseas operation remotely … to whom these measures would equally not apply.”

This explanation makes it clear that, in respect of all parts of the Bill, the Government have decided that there will be a difference in treatment between different categories of claimants; for example, between different categories of service personnel deployed on the same overseas operations—that is, those who are in the theatre and those who are not. My question is simply: how is this difference in treatment justifiable, and how is it compatible with our obligations under the ECHR if it is not compatible when expressed as in Amendment 13?

Photo of Lord Tunnicliffe Lord Tunnicliffe Opposition Deputy Chief Whip (Lords), Shadow Spokesperson (Defence), Shadow Spokesperson (Treasury), Shadow Minister (Transport)

My Lords, in essence, Amendment 13 in the names of my noble and learned friend Lord Falconer, the noble and gallant Lords, Lord Stirrup and Lord Boyce, and the noble Lord, Lord Thomas, would reintroduce the normal approach to limitation: if a claim is not brought within 12 months —or three years if it is a personal injuries claim—under the Human Rights Act, the court can extend indefinitely if it is just and equitable to do so. This will allow personnel to bring claims after the Government’s proposed six-year longstop.

While the Minister argues that the longstop will apply only to a small number of personnel, I was struck by the comment from the noble and gallant Lord, Lord Stirrup—repeated again today—that

“to argue that only a small number of service personnel would suffer injustice does not seem a respectable position for a Government to take at any time”.—[Official Report, 9/3/21; col. 1594.]

We wholeheartedly agree with him. We have to correct this unfairness and avoid a breach of the Armed Forces covenant, as suggested by the Royal British Legion. While a soldier injured through negligence by a piece of equipment on Salisbury Plain can bring a claim under normal rules, it is wrong that different rules apply for the same act of negligence if it occurs in an overseas operation.

I also want to highlight a concerning Answer I have received to a Parliamentary Question. When asked about government investigations against civil claims, the Minister revealed that the MoD is launching three times more investigations against personnel who pursue civil claims than it did five years ago. These examine

“the true extent of a claimant’s alleged injuries” and

“the veracity of a claim”.

This Answer, along with the six-year limit in this Bill, indicates that government is increasingly more suspicious of civil claims from troops against the MoD. We should not provide additional limitational hurdles in respect of military personnel bringing claims against the MoD. Therefore, the Bill clearly needs to be amended. When Amendment 13 is called, I intend to seek the opinion of the House.

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

My Lords, Amendments 7 and 8 seek to remove Clauses 8 and 9 from the Bill. Clause 8, in conjunction with Schedule 2, introduces new factors to which the courts must have particular regard when deciding whether to allow personal injury or death claims connected with overseas military operations to proceed after the primary time limit expires, and sets the maximum time limit for such claims at six years. The Government’s intent behind that is to help ensure that claims for compensation for personal injuries or deaths arising from overseas military operations are brought more promptly, and to help achieve a fair outcome for victims, for the service personnel and veterans who might be called upon to give evidence, and for the taxpayer.

Sections 11 and 12 of the Limitation Act 1980 set a three-year primary time limit for claims for personal injury or death, as do equivalent provisions in the other jurisdictions of the United Kingdom. This three-year time limit is not absolute, as the House heard from the noble Lord, Lord Thomas of Gresford, when introducing the debate. Section 33 of the 1980 Act gives the courts discretion to allow claims to proceed beyond that time limit if it is considered that it is equitable so to do.

When assessing whether it is fair to allow a claim beyond the initial three-year limitation period, courts must have regard to all the circumstances of the case and, in particular, to six factors which are set out in Section 33 of the 1980 Act. In broad terms, these relate to the steps taken by the claimant to bring the claim, the reasons for delay and the effect of the delay on the quality of the evidence.

The Government’s view is that these factors do not adequately recognise or reflect the uniquely challenging context of overseas military operations—a factor, I think, which is recognised more or less universally across your Lordships’ House. The Government are concerned that, unless the courts are directed to consider factors that are relevant to overseas operations, they may wrongly conclude that it is fair to allow older claims connected with overseas operations to proceed beyond the primary time limit.

This clause, in connection with Schedule 2, therefore introduces the three new factors, of which your Lordships have heard once again today, that the Government consider properly reflect the operational context in which the claims arose and to which the courts must have particular regard. These are the extent to which the 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 impact of so doing on their mental health. These new factors reflect the reality of overseas military operations; the fact that opportunities to make detailed records at the time may be limited; that increased reliance may have to be placed on the memories of the personnel involved; and that, as some of them may be suffering from mental health illnesses due to their service, there is a human cost in so doing. Clause 8, in connection with Schedule 2, also introduces, as your Lordships are aware, an absolute limit of six years for claims for personal injuries or death connected with overseas military operations.

In introducing the debate in your Lordships’ House, the noble Lord, Lord Thomas of Gresford, styled the three new factors as being “extraordinary”. I would rather say that they are an effort to recognise—to acknowledge —the unique context of which I have spoken, and which I think the House generally acknowledges.

This change, introducing an absolute longstop or time limit of six years for claims for personal injuries or death connected with overseas operations, brings the matter in line with claims for other torts or delicts that may occur on operations, such as false imprisonment, as set out in Section 2 of the Limitation Act 1980. It will give service personnel and veterans a level of certainty that they will not be called upon indefinitely to recall often traumatic incidents that they have understandably sought to put behind them.

Importantly, the existing date of knowledge provision in the 1980 Act, and in equivalent legislation in the other jurisdictions, means that for situations where an illness connected with an overseas operation does not manifest itself until many years after the incident—for example, post-traumatic stress disorder—the six-year time limit does not start until the date of knowledge, which may be the date of diagnosis. It is the same with other latent conditions such as the noble Lord, Lord Faulks, was describing when he gave your Lordships the example of mesothelioma, a cancer arising out of exposure to asbestos.

Lastly, the clause, in conjunction with Schedule 2, amends the Foreign Limitation Periods Act 1984 so that claimants cannot benefit from more generous time limits allowed under foreign law. This change is needed for consistency and will ensure that no claim is brought after six years.

To go back to the questions that the noble Lord, Lord Thomas of Gresford, put in relation to the date of knowledge, a claimant’s date of knowledge is the date on which they first had knowledge that their injury was significant and attributable to a negligent act or omission by an identifiable defendant. An injury is significant if the claimant would reasonably have considered it sufficiently serious to justify bringing a legal claim. A claimant must take reasonable steps to establish the significance of their injury by seeking medical or other expert advice and whether their injury was attributable to the negligent act or omission of an identifiable defendant. That means that a service person’s date of knowledge will be the date on which they establish, such as by obtaining a formal diagnosis, that they have suffered a significant injury as a result of their service, and that they suspect that the Ministry of Defence acted negligently.

The changes that this clause and Schedule 2 introduce go only so far as is necessary to ensure a fair outcome. They do not affect the way in which the time period is calculated, nor do they affect those provisions that suspend time in appropriate circumstances. They are also consistent with court rulings that claimants do not need to be provided with an indefinite opportunity to obtain a remedy—the very reason why courts have limitation periods in the first place. As my noble friend Lady Goldie remarked in relation to another group earlier, the courts have recognised that limitation periods have an important role to play in ensuring legal certainty and finality and in preventing injustice. As my noble friend Lord Faulks said, there is a difficult balance to be struck where limitation periods are involved, but such a balance must be struck. The changes that this clause, in conjunction with Schedule 2, introduces are proportionate and strike an appropriate balance between victims’ rights and access to justice on the one hand and fairness to those who defend this country on the other.

I shall not repeat the same arguments for Clauses 9 and 10, which amend the relevant legislation in Scotland and Northern Ireland, but I will just add that the Limitation Act 1980 covers only claims brought in England and Wales. It is therefore necessary to extend similar provisions across the whole of the United Kingdom to ensure that the same limitation rules apply to the same claims. It would be deeply unsatisfactory if the changes which the Government are introducing to help achieve a fairer outcome in relation to claims brought in England and Wales could be circumvented by bringing a claim in Scotland or Northern Ireland—a species of forum shopping—instead.

Amendment 13 would carve out claims by service personnel and veterans from the limitation longstops in Part 2. I acknowledge the concerns that some of your Lordships have in relation to the impact of the new absolute limitation periods on the ability of service personnel and veterans to bring claims, but I cannot be clearer in stating, as the noble and gallant Lord, Lord Stirrup, anticipated I would, that I believe the impact on them in practice will be minimal.

The limitation longstops in Part 2 have been introduced to help address the difficulties that the Ministry of Defence has faced in defending civil claims arising from historic overseas military operations. They also provide greater legal certainty, as well as greater certainty to service personnel and veterans that they will not be called on many years after operations have ended to give evidence about traumatic events relevant to a claim.

What is also important for service personnel, however, is that these measures may help reduce criminal investigations many years or decades after operations have ended. This is because the longstops will likely encourage any civil claims to be brought sooner, and any associated criminal allegations are also therefore likely to be investigated sooner. This reduces the risk of criminal investigations arising many decades later as a result of allegations made in civil claims. Without the hard longstops, there is no certainty for service personnel, as civil claims brought after six years may well lead to criminal investigations many years after the event. This is why Part 2 protects service personnel, not the Ministry of Defence. I offer that assurance once again to the noble and gallant Lord, Lord Stirrup.

Noble and gallant Lords will know that the circumstances of overseas military operations are specific and unusual. It is this context that we need to consider when comparing claims arising from overseas operations to those arising in non-operational contexts. When considering civil claims connected with overseas operations, the Ministry of Defence has faced difficulties arising from the lack of accurate contemporaneous records. When deployed on an overseas operation, the Armed Forces are in the unique circumstance of being under almost constant threat of attack, where decisions need to be made extremely quickly and under great stress. This can make it difficult to be certain about what happened during a particular incident and to capture the level of detailed information and accurate records needed to help determine a claim.

This lack of accurate records means that claims connected with overseas operations are often heavily reliant on the memories of current and former service personnel who frequently interact with hundreds of people during a single deployment and may deploy multiple times. In many of the hundreds of recent cases against the Ministry of Defence connected with overseas operations, it has been found that service personnel simply cannot remember particular events giving rise to claims, let alone the claimants themselves. This is part of that unique context we were describing where there are difficulties attached to stale claims which are different from those attached to stale claims in the domestic context.

It is in the interest of claimants who bring claims in connection with overseas operations to do so in a timely fashion because it is much more likely that the facts of the situation can be determined more accurately, thus offering a greater chance to achieve the justice which is the intention underlying all claims.

Encouragingly, the vast majority of service personnel and veterans already bring timely claims. Analysis of relevant figures indicates—again, the noble and gallant Lord, Lord Stirrup, anticipated me—that around 94% of claims from service personnel and veterans arising from operations in Iraq and Afghanistan were brought within six years of the date of the incident or the date of knowledge. That means that carving out claims by service personnel from the longstops would have very little practical impact.

It would also mean that the longstop measures in Part 2 would no longer be compatible with our obligations under the European Convention on Human Rights. Here I am anticipated by the contribution of my noble friend Lord Faulks, who anticipated my submission in relation to this discriminatory aspect, and I seek to answer the noble Lord, Lord Browne of Ladyton, on this point, which he also raised. It would be incompatible because in disapplying the longstops to claims by service personnel connected with overseas operations, we would be discriminating, with no justifiable reason, against non-service personnel who also bring claims connected with overseas operations. I am sure your Lordships would agree that we do not want to render the Bill incompatible with our ECHR obligations. To avoid this, we need to ensure that this amendment does not form part of the Bill.

It is also our view that personnel deployed on overseas operations are not in an analogous situation with those who are not so deployed. We therefore consider that the difference in treatment between their claims is justified. This is because the circumstances in which claims connected with overseas operations arise are specific and unusual.

Additionally, the difficulties that arise from claims connected with historic overseas operations relating to the lack of accurate contemporaneous records and increased reliance on the fading memories of personnel do not arise in the same way in claims not connected with historic overseas operations. This is the point of principle that the noble Lord, Lord Thomas of Gresford, called upon me to produce. This is the compelling reason sought by the noble Baroness, Lady Chakrabarti.

We consider that six years is a reasonable and sufficient period to bring a claim, while also proving that much-needed legal certainty. We consider that a six-year absolute time limit is compatible with our ECHR obligations, and, importantly, an absolute time limit of six years also has precedent in English and Welsh law. Section 2 of the Limitation Act 1980 already has a six-year time limit for bringing claims for intentional torts. To refer again to the case mentioned by my noble friend Lady Goldie, in Stubbings v the United Kingdom, the European Court of Human Rights confirmed that this absolute time limit is compatible with the UK’s ECHR obligations.

It is true, of course, that based on our analysis of historic claims, 6% of service personnel historically brought their claims after six years from the date of incident or knowledge. I accept that the Government have a role to play in ensuring that potential claimants know about the measures we are introducing with this Bill. We will therefore educate service personnel at crucial points in their careers to remind them that a claim in connection with an overseas operation will have to be brought within the relevant time periods. For example, service personnel will be taught about these time limits at pre-deployment training, as well as during their resettlement training.

The noble Lord, Lord Hendy, referred to acting in a professional capacity at the Bar in relation to a member of a constituent’s family sadly killed by friendly fire while on operations. The noble and gallant Lord, Lord Stirrup, posed the question of whether we are to assume that the Government would consider it acceptable that 6% of meritorious claims should be lost. Grouping these two questions together, I answer no, but I am reluctant to argue in relation to cases taken in the abstract as opposed to particular examples where a meritorious claim would have been lost by the application of a six-year absolute time period.

It is worth reminding ourselves that limitation longstops will cover only a very small subset of the personal injury claims brought by current and former service personnel against the MoD. Additionally, personnel will continue to have access to the Armed Forces compensation scheme.

I note the observation made by the noble and learned Lord, Lord Hope of Craighead, regarding the desirability of establishing “a hard-edged cut-off”. However, for the reasons that I have advanced, we consider that this reflects adequately these unique circumstances, which are the very justification for the Bill. The noble Lord, Lord Tunnicliffe, asked about the operation of the covenant, and as I approach my conclusion, let me state that Part 2 of the Bill will not breach the Armed Forces covenant. The covenant states that those who serve in the Armed Forces, whether regular or reserve, those who have served in the past, and their families, should face no disadvantage compared to other citizens in the provision of public and commercial services. Once again, for the reasons I have put forward, we are not talking about incidents which took place on Salisbury Plain. We are talking about incidents giving rise to claims which took place in the unique circumstances of deployment on overseas operations.

The primary focus of the Armed Forces covenant is to ensure that service personnel and veterans are not disadvantaged in comparison with civilians in the same position. Indeed, the longstops in Part 2 will apply in the same way to all claimants bringing claims connected with overseas operations against the MoD, whether they are military personnel, civil servants, contractors or local nationals. No disadvantage arises from service as a member of the Armed Forces in relation to these measures because everyone, whether military or civilian, who is deployed on an overseas operation or affected by one is treated equally in this respect.

Finally, I refer to the questions posed by the noble Lord, Lord Browne of Ladyton. Much of his submission to your Lordships this afternoon dealt with his ongoing discussions with my noble friend Lady Goldie and others. I have not contributed to these and my views have not been sought. On that basis, I hope that the noble Lord and the House will forgive me for not attempting to present an answer at this stage.

The noble Lord, Lord Thomas of Gresford, said that he would not seek a vote on his amendments. I conclude by urging the noble Lords responsible for the other amendment to withdraw it.

Photo of Lord Thomas of Gresford Lord Thomas of Gresford Liberal Democrat Shadow Attorney General 6:00, 13 April 2021

My Lords, I am grateful to all noble Lords who have spoken, particularly the noble Lord, Lord Hendy, and the noble Baroness, Lady Chakrabarti, for their support for my Amendments 7 and 8. I am also grateful to the noble and gallant Lord, Lord Stirrup, for pointing to the difficulties for MoD civilians who are deployed on overseas matters.

The argument put forward by the noble and learned Lord, Lord Stewart, is that Amendment 13 would not apply to them. It would discriminate against them because they are not included—so what do you do? You do not add in the MoD civilian employees; you reduce the rights of the combatants—it seems completely topsy-turvy. Another argument is: everything is okay because, when the guillotine comes down, there will only be a few people left on the other side. I do not think that that is a proper basis for a policy.

I am grateful to the noble and learned Lord, Lord Stewart of Dirleton, for answering the questions that I posed, and I shall study his answers with care. When he said that these proposals encourage civil claims to be brought more promptly, I reflected that, not an hour or two ago, the Government resisted the code that I proposed, in Amendment 6, to do precisely that in criminal matters. I argued there for matters to be brought more promptly, and the Government resisted those proposals—but I am pleased to see that the amendment passed.

The noble and learned Lord, Lord Stewart, said that there are factors unique to overseas operations that prevent, rather than allow, the extension of time. Overseas operations are extremely difficult, as was discussed in earlier debates; it is extremely difficult to pursue a claim, to get the evidence right and to get the advice, witnesses and so on. You would have thought that overseas operations would allow for more time to bring an action, not less.

The balance, apparently, is to be struck such that the problems of investigating witnesses’ memories are to come before the death or mutilation of a victim. The Welshpool figure of justice, with the scales of justice permanently tilted in one direction, comes to mind.

I have indicated that I beg leave to withdraw Amendment 7 and shall not move Amendment 8, but we shall certainly support Amendment 13 when it is put.

Amendment 7 withdrawn.

Clause 9: Restrictions on time limits to bring actions: Scotland

Amendment 8 not moved.

Clause 10: Restrictions on time limits to bring actions: Northern Ireland

Amendment 9 not moved.

Clause 11: Court’s discretion to extend time in certain Human Rights Act proceedings

Amendment 10 not moved.

Photo of The Earl of Kinnoull The Earl of Kinnoull Principal Deputy Chairman of Committees, Deputy Chairman of Committees

We now come to the group consisting of Amendment 11. Anyone wishing to press this amendment to a Division must make that clear in the debate.

Clause 12: Duty to consider derogation from Convention