Clause 8 - Restrictions on time limits to bring actions: England and Wales

Overseas Operations (Service Personnel and Veterans) Bill – in a Public Bill Committee at 10:45 am on 20th October 2020.

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Question proposed, That the clause stand part of the Bill.

Photo of Graham Stringer Graham Stringer Labour, Blackley and Broughton

With this it will be convenient to discuss the following:

Clauses 9 and 10 stand part.

New clause 2—Restrictions on time limits: actions brought against the Crown by service personnel—

“Nothing in this Part applies to any action brought against the Crown by a person who is a member or former member of the regular or reserve forces, or of a British overseas territory force to whom section 369(2) of the Armed Forces Act 2006 (persons subject to service law) applies.”

This new clause amends Part 2 of the Bill so that it explicitly excludes actions brought against the Crown by serving or former service personnel from the limitations on courts’ discretion that the Part imposes in respect of actions relating to overseas operations.

For the avoidance of doubt, and so that we do not end up in the previous situation, I should say that if right hon. and hon. Members wish to speak to new clause 2, clauses 9 and 10, or part 2 of the Bill, now is the time to do so, although we will vote on them later.

Photo of Stephen Morgan Stephen Morgan Shadow Minister (Defence) (Armed Forces and Defence Procurement), Shadow Minister (Defence)

The fact that new clause 2 has to be tabled underlines one of the key problems in the Bill. As my right hon. Friend the Member for North Durham said, this Bill does not do what it says on the tin: it does not help to protect our armed forces personnel, but does the exact opposite. It limits our troops’ right to justice. It does not benefit them—in fact, it actively discriminates against them.

Unfortunately, this has been a long-running theme of the debate as the Bill has passed through the House. The intention of the Bill is one the Opposition are willing to work with, but the Government have got parts of it badly wrong; this part of the Bill, unfortunately, is a prime example of that. The Government cannot claim that the Bill benefits our personnel while legislating to limit the courts’ discretion to disapply time limits for actions in respect of personal injuries or deaths that relate to overseas operations of the armed forces. That is why this part of the Bill must be amended and improved.

New clause 2 would amend part 2 of the Bill so that it explicitly excludes actions brought against the Crown by serving or former service personnel from the limitations on courts’ discretion imposed by part 2 in respect of actions relating to overseas operations. The question must be asked: why are the Government explicitly trying to mitigate the ability of our service personnel to access a route to justice? Is that really in line with the spirit of the Bill? In the lead-up to Remembrance Sunday, are the Government really comfortable passing a Bill that will clearly limit service personnel’s rights?

In the evidence sessions, we heard a great number of warnings about this part of the Bill. More specifically, points were raised about the Government’s own impact assessment of service personnel privately claiming for their injuries. As the witness from the Association of Personal Injury Lawyers said,

“I think it will definitely have an impact. I do not think that the impact statement that has been released really explores it fully, because it ignores a large proportion of civil claims brought against the Ministry of Defence, which may include elements of overseas operations.

If I can give you just a quick example, the impact study does not take into account noise-induced hearing loss claims. These are complex claims that may involve exposure to harmful noise at any point of the serviceperson’s service, and at different points of overseas operations in different countries. The impact study that has been released ignores all of those claims. In the last year alone, I think the figures released by the Ministry of Defence suggested that 1,810 claims relating to noise-induced hearing loss were brought against the MOD.

My answer to your question is that I think there will be an impact, but we do not know the extent of that impact, and that needs to be explored further.”––[Official Report, Overseas Operations (Service Personnel and Veterans) Public Bill Committee, 6 October 2020; c. 54.]

That is a real point of serious concern. If the Government’s own impact assessment is flawed and has not fully taken into account the scope of the legislation’s impact, it is imperative that the Government take another look at this part of the Bill, to ensure that they have been fully and properly informed by their own impact assessments.

I repeat once again that Labour wants to work with the Government to get the Bill right, but at this stage there are enormous concerns that it is far from that. In addition, there are real, specific cases in which the Bill would clearly disadvantage our troops—not simply numbers on a page. Those include types of case such as the noise-induced hearing loss that the witness a fortnight ago referred to. That witness referred to a former marine who received £500,000 for noise-induced hearing loss on the claim that his hearing loss and tinnitus were caused by a negligent exposure to noise. He served in Northern Ireland, the Gulf and Afghanistan and was exposed to noise from thousands of rounds of ammunition, thunderflash stun grenades, helicopters and other aircraft, and explosive devices, and left the Royal Marines in 2012.

The marine was unable to make a claim for compensation until 2014, seven years after he first became aware that he had problems with his hearing. The MOD admitted liability and made no argument about the case’s being brought out of time. The time limit in the Bill, however, would have eliminated all aspects of the claim relating to the marine’s extensive service overseas. It is exactly examples of that nature that raise questions over the depth and quality of the Government’s impact assessment, as well as whether this part of the Bill is really in line with the spirit of the Government’s supposed intent.

The Bill clearly needs fixing, and the Government need to go back and look at whether they really are delivering on what they claim they want to achieve. I ask the Minister: is it the Government’s intention to allow cases such as the said case of noise-induced hearing loss to be ignored by the Bill? What steps were taken both to ensure the Government’s impact assessment was comprehensive and to mitigate any confirmation bias of the Government’s intent on the Bill?

This part of the Bill also has another clear issue: it risks breaching the armed forces covenant. Let us take a look at what part 2 of this Bill really means. The Limitation Act 1980 currently results in the armed forces community and civilians being treated equally when it comes to seeking a claim for personal injury. As it stands, there is a three-year cut-off point in place, but the courts retain the right to grant an extension to forces personnel.

Section 33 of the Limitation Act provides the court discretion to override the current three-year limit, but this Bill deliberately moves away from that and snatches away the ability of courts to show discretion if the case relates to an overseas forces action. It makes a deliberate change to the Limitation Act. That makes no sense. There are already structures in place to ensure that only appropriate claims are brought forward. Courts routinely manage out-of-time proceedings and frequently throw out cases where the delay is unjustified. The detailed criteria set out in the Limitation Act already address cases that do not have reasonable grounds or are unjustified. I put it to the Minister: why is he actively removing the aspect of the Limitation Act that offers courts the right to grant an extension in cases relating to armed forces personnel?

The Bill removes the ability of members of the forces community to bring forward a civil claim at all after six years, even where it would have passed judicial scrutiny. Under the Government’s proposed changes, civilians will retain the right to pursue a civil claim against their employer, but armed forces personnel will not. That clearly risks breaching the armed forces covenant. With that in mind, I am concerned that the Royal British Legion has said that the Bill constitutes a potential breach of the armed forces covenant—a deeply worrying conclusion from the largest armed forces charity in the UK. Are Ministers not concerned that the very Bill that they claim is devised to help our troops is said to be doing the opposite by such a distinguished organisation?

In addition, we heard from the Association of Personal Injury Lawyers that the Bill leaves our veterans with fewer rights than prisoners. That is a damning verdict, delivered by lawyers who devote their lives to representing our armed forces personnel. Our armed forces serve the nation with distinction; they deserve more than to have their rights stripped away. I take this opportunity to say to the Minister, “Do not dismiss the warnings of the Legion and APIL. Work with us to address them.”

I ask the Minister to clarify whether Ministers are concerned that the Bill they claim was devised to help our troops is said to be doing the complete opposite by such distinguished organisations as the Royal British Legion. Why is the Minister actively removing the aspects of the Limitation Act that offers courts the right to grant an extension in cases relating to the armed forces personnel?

Why are the Government willing to introduce a six-year longstop for troops but not civilians? Why are some medical conditions worthy of justice and not others? Are the Government really comfortable with passing a Bill that will clearly limit service personnel’s rights in the lead-up to Remembrance Day? Is the Minister content to allow cases of noise-induced hearing loss to be ignored by the Bill? Finally, what steps were taken to ensure that the Government’s impact assessment was comprehensive and to mitigate any confirmation bias to the Government’s intent with the Bill?

Photo of Kevan Jones Kevan Jones Labour, North Durham

I want to speak to clause 8 and my new clause 9. Does the Minister want to do the right thing by our armed forces personnel? I think he does. I have never questioned his determination to do that. Again, the problem with the Bill is its unintended consequences.

Part 2 is a key part of the Bill. As my hon. Friend the Member for Portsmouth South said, it cannot be right that we will pass legislation that will mean that our servicemen, women and veterans have fewer rights than prisoners. The Limitation Act 1980 is there for a good reason. In the Minister’s comments in The Sun newspaper on Sunday, he said he will give a guarantee that servicemen and women will not lose out in part 2. I would be interested to know how he will do that, given the six-year longstop.

I do not doubt the Minister’s commitment to what he said in that newspaper article, but—to use the old Robin Day quote from his famous interview with John Nott—the Minister, like us all, is a “here today, gone tomorrow” politician. It is important to ensure this legislation is future-proofed. Irrespective of what the Minister says in his article, which is well intentioned, he cannot give that guarantee. Again, I do not question his motives for saying what he did.

The Minister has a higher trust in the MOD than I do when it comes to protecting servicemen and women. The Limitation Act, section 33, is very clear: it sets out the exceptional circumstances. In our evidence, we heard that although they are exceptional circumstances, they are not uncommon.

The Committee heard evidence of one example; I will give another, which, having spoken to a friend of mine who deals with personal injury, I think falls within the scope of this, too—of the Snatch Land Rovers in Iraq. The families of the individuals killed in the Snatch Land Rovers were not aware of the failings—not failings of the chain of command, but of the procurement—until the Iraq inquiry took place. They then sought legal redress against the MOD, because they thought a decision had been taken that had put their loved-ones in jeopardy. It was many years later, so it was outside of time, but they were able to use section 33 of the Limitation Act to bring a case, which, according to the evidence we heard, they then settled.

My other concern with the MOD—again, referred to in the evidence sessions—is that it employs clever lawyers. It will use the provision as a way of stopping any case that comes forward, as a first hurdle for the claimant to get over. That means that there will be no right of appeal for those individuals. If the Bill had been in force during the case of the Snatch Land Rovers, those families would have had no redress at all. At the end of the day, the measures protect only the MOD; they do not protect our servicemen and women, as the Minister would like. Again, we come back to the Bill’s problem of conflating civil and criminal cases.

My hon. Friend the Member for Portsmouth South talked about hearing loss cases. There are also cases where evidence comes to light later, because it was not available at the time. Let us take the case of an aircraftman who painted aircraft and argued that, as a result, he had had a severe reaction, including an attack to his nervous system. He had to leave the service and could not work, but at that time he could not prove any link to his service. He went to a solicitor to see whether they could take the case, but at that time there was no research into the effects of these paints on the human body. It was only some 12 years later, when medical evidence had been published in scientific papers that exposure to certain paints was harmful and could lead to the condition this poor individual found himself in, that his lawyer could say, “Yes, we can try to argue a causal link in a case.”

Photo of Chris Evans Chris Evans Labour/Co-operative, Islwyn 11:00 am, 20th October 2020

As my right hon. Friend has been speaking, I have been thinking in particular of the people serving in the Royal Navy who were affected by asbestos. In the 1950s and 1960s, asbestos was this magic formula—used everywhere from schools to garden sheds. Then, years later, it was found to cause tumours in the lungs. That caused serious problems to our servicepeople, but the evidence did not emerge for 30 years. People may be using chemicals now that we do not understand. How would the MOD be held responsible, and families be properly compensated?

Photo of Kevan Jones Kevan Jones Labour, North Durham

I will come back to asbestos. The aircraftman could not walk because the paint had attacked his nervous system, and his case was able to be taken forward only because of scientific evidence about exposure to that paint. However, if the Bill goes through, such an individual would not be able to make a case because it would be way out of the six-year limit. A lawyer friend of mine took that case to court and argued successfully before a judge that the individual was only able to bring the case then because of the scientific evidence, and that allowed them to take the case forward.

Photo of Johnny Mercer Johnny Mercer Parliamentary Under-Secretary of State (jointly with the Ministry of Defence)

A series of examples have been given where the Bill would not prevent action from being taken. On the Snatch Land Rover incident, the inquiry findings is the point of knowledge from which people had six years to make a claim. On the paint issue, when a connection is made with service and evidence can be produced, that is the point of knowledge from which there are six years. I do not know whether the point of knowledge piece is clearly understood, but when evidence comes together that clearly shows what has happened, that is when the six years begin. The Bill would not prevent such cases.

Photo of Kevan Jones Kevan Jones Labour, North Durham

I have heard the Minister say that before. I accept what he is saying, but he is wrong. I will come to asbestos, because in a previous life I used to press asbestos cases, but I will first address the Minister’s point and why he is wrong. I would agree with him about the date of knowledge if it were he and I dealing with the Bill. However, the dealings will be with MOD lawyers and not with the Minister or with me. If it said in the Bill that the date of knowledge were that date, that would be fine, but it does not. The Minister is putting an awful lot of trust in MOD lawyers. I would not do that, because they will argue straight away in such a case that it is time barred because of the legislation. They use that now, for example in the paint case I just mentioned. I hear what the Minister says and he might be technically right, but we heard in evidence that the MOD lawyers are experienced and will use that in their armoury as a way of stopping claims going forward.

Photo of Carol Monaghan Carol Monaghan Shadow SNP Spokesperson (Armed Forces and Veterans), Shadow SNP Spokesperson (Education)

This is exposing an ambiguity right here, right now. Up until this point, the Minister has talked about the point of knowledge of the injury or the disablement. Now, he is talking about the point of knowledge of the issue with the equipment. What are we talking about and where in the Bill is that differentiated? If there is no clarity, we will have a situation with lawyers because of that ambiguity.

Photo of Kevan Jones Kevan Jones Labour, North Durham

Yes, and the lawyers will use it to protect the MOD. Like I say, if the Minister and I had to judge, we both would say “Yes, give the benefit of the doubt to the veteran.” I certainly would. However, neither he nor I will be there. It will be down to some Minister in the future and some lawyer to do that.

Coming on to asbestos, let me give an example. The issue in the early test cases on asbestos that I dealt with was about the date of knowledge. As my hon. Friend the Member for Islwyn just said, the issue with asbestos and asbestos-related diseases is that they can lie dormant for 20 or 30 years. It is an indiscriminate issue. I have met men who worked with asbestos and have what they call asbestos scars—asbestos in their skin—with no symptoms whatsoever and no health effects at all. I have also dealt with cases where a doctor and a nurse, who were just walking through a tunnel where an asbestos pipe was broken and were being covered in asbestos every day, developed mesothelioma, which we all know is a death sentence within 18 months to two years.

The MOD used to have a get-out because of Crown immunity; it could not be sued. As such, we are bringing back time-barred Crown immunity and saying to people that they cannot take cases against the MOD. Would cases around asbestos be time barred? I do not know. Again, why change it? I accept what the Minister is saying—we do not want frivolous and vexatious cases—but if they are time barred, there is a perfectly legitimate system in place at the moment called the Limitation Act, which allows people to take a case forward, if they wish to or their legal representatives feel there is a case.

Photo of Chris Evans Chris Evans Labour/Co-operative, Islwyn

My right hon. Friend has, like me, worked with many constituents on this issue. Plural plaques may or may not develop into full-on asbestosis, but if someone develops the plaques within six years and then goes on to develop—God forbid—the worst kind of asbestosis, how does he see the MOD addressing that anomaly with the Bill?

Photo of Kevan Jones Kevan Jones Labour, North Durham

That is the point. I do not want to go off piste and explain the issues around pleural plaques, but I am a little bit of a sceptic on this. Although pleural plaques are lung scarring, I have not yet been convinced of any evidence that every case turns into something asbestos-related. It can be an indicator but it does not always go on to that.

Again, the MOD used to have Crown immunity, which used to mean that a case could not be brought against the MOD; that is what we are doing. Certainly in cases involving submariners who worked in submarines—as my hon. Friend the Member for Islwyn said, they threw asbestos around like confetti, as it was the great wonder material at the time—they would be time barred under the Bill. Again, coming back to what the Minister said, were it he and I then yes, I would agree, but lawyers will use that.

I do not understand why part 2 is there. Why would the Government want to put veterans and servicemen and women at a disadvantage? The Limitation Act is there for a perfectly good reason; it acts as a sieve because the person involved has to go before a judge and argue an exceptional reason as to why that case has not been brought within that period of time. From my experience in dealing with limitation cases for industrial diseases, for example, they are hard to prove, so it does act as a sieve.

If the Government are wanting to ensure that we are not getting huge amounts of unwarranted claims, the Limitation Act, as it stands at the moment, acts as that protection because the bar is high. In the cases where it does apply—with Snatch Land Rovers for example, the paint case I mentioned, or other cases, including those on hearing loss—it is very important, and I cannot support anything which means that our servicemen and women will be at a disadvantage.

In the evidence we took, Hilary Meredith said:

“I think that part 2, on the time limit, should be taken out and scrapped completely. It is the time limit for the procedure. It went on too long”.––[Official Report, Overseas Operations (Service Personnel and Veterans) Public Bill Committee, 6 October 2020; c. 19.]

She then referred back to investigations, which we come back to all the time. The other issue that she and a few other witnesses raised was the Human Rights Act 1998. I know that a lot of people start frothing at the mouth and gnashing their teeth whenever we mention the Human Rights Act, because it always applies to those that do not deserve justice—the ne’er do wells, asylum seekers and everyone else—but it is actually there to protect us all.

There are cases where servicemen and women will bring cases against the MOD under the Human Rights Act. One of the arguments—and I think the reason why, in this Bill, the Human Rights Act is a bit of a bogeyman—is that somehow the Act will impinge on the ability of servicemen and women to do their work. I do not accept that because, looking at the Smith case, the Human Rights Act was not an impediment; it clearly separated out combat immunity—that is, that lethal force must be used on occasions. Putting a time limit on the ability for servicemen and women to bring a case under the Human Rights Act would be a disadvantage to them.

Hilary Meredith says in her evidence that:

“There is a difficulty putting a time limit on the Human Rights Act…For civil claims against the Ministry when people are injured or killed in service overseas, I do not think a longstop should be applied. There are tremendous difficulties in placing people in a worse position than civilians. In latent disease cases—diseases that do not come to light until much further down the line, such as asbestosis, PTSD, hearing loss—it is not just about the diagnosis. Many people are diagnosed at death.”—[Official Report, Overseas Operations (Service Personnel and Veterans) Public Bill Committee, 06 October 2020; c. 18, Q30.]

Again, that is something that I dealt with when I dealt with asbestos cases. The only time that a lot of people knew about them was when there was a death certificate. On more than one occasion, I stopped funerals to ensure that we had done the proper post-mortems.

The Human Rights Act 1998 makes it clear that combat immunity is preserved—the idea that we have to use legal force on occasion. The Minister is right to say that we do not want legal disputes. In the case of Smith & Ors v. Ministry of Defence, the Supreme Court made it very clear that the principle of combat immunity was absolutely sound; it did not question the principle. That was the Snatch Land Rover case. Somebody argued that it was extending combat immunity, but it was not. In that case, it was the families of the deceased—the young soldiers who had been killed or severely injured in Snatch Land Rover use—who wanted to challenge a decision that was not made by the chain of command. They were questioning the Whitehall civil servants who had made the decision to procure the Snatch Land Rovers. They were not challenging the fact that their loved ones were in a combat situation. They were arguing not about a decision taken on the battlefield, but about a decision on procurement. That is why it was important. Although people argue that we are chipping away at combat immunity, the Supreme Court has been very clear about that. That gives some of the background noise to this case, which is very difficult.

Can we have a situation whereby we are taking away the rights of our servicemen and women? I do not think we can. Looking at the evidence that was given in Committee by Mr Charles Byrne, the Royal British Legion has huge concerns about this issue. These are the types of cases that it will take. They are difficult cases, and they will need funding on occasions. On occasions, the RBL will be funding such cases as test cases, which are very important.

Look at the Snatch Land Rover decision, and look at all the law on asbestos. It was all done in test cases, many of which were time limited. They set precedents in law that opened up justice to thousands of people who had been injured, including servicemen and women and people who had worked in dockyards and other places. It is sometimes appropriate to look at a case and say, “Yes, this might be time limited, but there is a damn good reason for running this case, because it might have implications for other servicemen and women as well.”

The covenant should be there to no disadvantage, but what we are doing with part 2 of the Bill is worse than that. We are making servicemen and women veterans second-class citizens. They will not have the same rights that you and I have, Mr Stringer, to bring a time-limited case. As was said in Committee, they will not have the same rights as a prisoner or an asylum seeker. That cannot be right. Was that the Minister’s intention? No, I do not think for one minute that it was, because he does not want to do anything that would put our servicemen and women at a disadvantage. However, I think that what he is doing, by listening to what civil servants have told him, has led to a situation whereby he has brought trust within the MOD that in future this will not be a problem. But I think it will be. As this Bill goes forward, if the Minister is listening, this is a part of it that needs to be taken out; if it is taken out, the Bill will be improved. That would help a lot of people who have concerns about the Bill and are quite rightly criticising it.

I now turn to new clause 2, which aims to highlight that fact and give some credence to the idea that the Bill establishes a disadvantage. New clause 2 effectively asks why servicemen and women should be disadvantaged. I have picked prisoners as an example, because prison is an obvious situation in which there are large numbers of people and a large number of claims are generated. I think that it is good to highlight that comparison.

The other point about new clause 2 is that it is about how we futureproof the Bill. I have already mentioned a technology case, that relating to paint. We have technologies that are being generated today, but do we know what their effects will be in 10 or 20 years’ time? We had the discussion the other day about unmanned aerial vehicles, or UAVs. I think that all the evidence is out about, for example, the mental health effects of UAVs and the possible issues around them. It could lead to a situation whereby at some point in the future clear evidence comes to light about using UAVs or being exposed to that trauma—I accept what the Minister said, namely that in most cases people are not in immediate danger, as they are not on the battlefield as such, but if it is proven that they are exposed to trauma, what about those individuals?

We only have to look back in history to see how the process operates. For example, when early submarine technology came in at the turn of the century, there was no consideration of the effects that came to light later. The first submarine deployed in 1902, I think. The people on it were rough and ready, but the long-term exposure to life underwater had effects. There were psychological effects, but it has been proven since that there were also certain medical effects.

This issue is important, because in addition to the lessons learned, there is another process to consider. These unique cases—as I have said, perhaps there are not very many of them—can lead to huge change. For example, the Snatch Land Rover case was a way, first of all, of focusing on protective vehicles. I know that it is sometimes thought that lawyers are campaigning lawyers, or whatever they are called, but actually what they were doing in that case was protecting servicemen and women. So, the case drew focus to Snatch Land Rovers and why we needed more protection in equipment of that kind. Did the families involved receive some closure? I think they did, and in some cases they also received financial compensation, which was also important.

If that case improved the way that we procured vehicles, taking it into account, it had a beneficial effect. Likewise, I mentioned the case about paint. If we then make sure that people—servicemen and women—have protective equipment when they use that type of paint, things improve. The process can be seen as difficult and bureaucratic, with lawyers perhaps making money from it, but at the end of the day it not only saves lives but, I would argue, improves conditions.

The Chair adjourned the Committee without Question put (Standing Order No. 88).

Adjourned till this day at Two o’clock.