Amendment 7

Part of 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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Photo of Lord Thomas of Gresford Lord Thomas of Gresford Liberal Democrat Shadow Attorney General 4:58, 13 April 2021

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.