Amendment 7

Part of Overseas Operations (Service Personnel and Veterans) Bill - Report – in the House of Lords at 5:30 pm on 13 April 2021.

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Photo of Lord Stewart of Dirleton Lord Stewart of Dirleton The Advocate-General for Scotland 5:30, 13 April 2021

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.