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 2:00 pm on 20th October 2020.

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Question (this day) again proposed, That the clause stand part of the Bill.

Photo of David Mundell David Mundell Conservative, Dumfriesshire, Clydesdale and Tweeddale

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.

Photo of Kevan Jones Kevan Jones Labour, North Durham

It is a pleasure to have you in the Chair, Mr Mundell. I trust that everyone has had a nice lunch. I hope the Minister has not had too much raw red meat and that he has been able to have a lie-down after his exertions this morning. He will certainly not be eating haggis for his dinner or lunch, or at any time soon, after his comments about Scotland this morning. I shall let him enlighten you later on those points, Mr Mundell.

We were talking about the rights of veterans. My hon. Friend the Member for Islwyn raised the issue of asbestos and how asbestosis is one of a number of diseases that limits the serviceman or woman from bringing claims within the six-year period. As I said this morning, the Minister and I agree on one thing: we understand the limitation and the date of knowledge. The bit where we have a problem is where the Bill takes out veterans, apart from anyone else, from section 33 of the Limitation Act 1980. We heard evidence last week from the Association of Personal Injury Lawyers. I accept that there are certain people in the room who perhaps do not like lawyers—criminal, civil or whatever. The association told us that the Bill strips service personnel and veterans of certain rights in relation to civil claims. I will come back to this later, but we were told that if the Bill is enacted, prisoners will have more rights than veterans or servicemen and women.

On the claims brought before the Ministry of Defence, clearly this Bill has its origins in what its promotors argue is a tsunami of unfounded civil claims that then led to criminal investigations, which then took many years. We have demonstrated in Committee that the actual number of prosecutions have been very small, but in terms of civilian claims there is also a very important set of claims that we should protect: the claims that allow servicemen and women and veterans to bring claims against the Ministry of Defence. That is done in two ways: via a civil claim or under the Human Rights Act. As I said this morning, some people in this place suddenly start frothing at the mouth as soon as the Human Rights Act is mentioned, but as I have said, it protects us all by giving us basic human rights.

The problem with part 2 of the Bill is that it will not only stop the straightforward civil claims, where people ask for compensation for injuries and other things; it would limit claims under the Human Rights Act. Such claims are important. I referred this morning to the Smith case involving Snatch Land Rovers, which was around the right to life and human rights. Hilary Meredith, who I thought had very good, detailed knowledge in the claims area, said in her evidence:

“There is a difficulty putting a time limit on the Human Rights Act—I do not even know whether we can do that constitutionally, because it is a European convention.”––[Official Report, Overseas Operations (Service Personnel and Veterans) Public Bill Committee, 6 October 2020; c. 18, Q30.]

I said that I would not question the Minister’s motives for what he is trying to achieve, but again, we are the seeing the huge implications that this Bill could have. We have already discussed criminal cases and possible trials before the International Criminal Court, but it would be interesting to know how the longstop—which is stopping the rights we all have under the Human Rights Act for veterans and armed force personnel—will be put into practice legally if, as Hilary Meredith said in her evidence, the UK has certain rights that are not just governed by what we agree as a country, but are part of an international convention on human rights. How does that square with part 2 of the Bill? That needs some explanation, because I do not want veterans and armed services personnel not to be covered by the Limitation Act 1980 or the rights that we all get from the Human Rights Act.

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

Does my right hon. Friend agree that the nub of the problem that he is driving at is that clause 8 and schedule 2 take away the court’s discretion under section 33 of the Limitation Act 1980 to disapply the time limit if

“it would be equitable to allow an action to proceed”?

That is being taken away from our service personnel, and it is the same under the Human Rights Act. Is not the nub of the problem with clause 8 that it is removing the court’s discretion to allow these actions to go ahead?

Photo of Kevan Jones Kevan Jones Labour, North Durham

It is. Again, this is about the rights of veterans and armed services personnel, which I thought this Bill was trying to protect. If we are taking away rights that everyone else has access to, that is a retrograde step. We need an explanation of why that is being done and why it is necessary, because I certainly do not think it is proportional. Again, that is one of the things this debate has thrown up, in that the Bill is about protecting the MOD from litigation, whether by armed forces personnel or veterans, and that cannot be right.

Coming back to investigations, Hilary Meredith raised another important thing that does not apply:

“That is a really interesting point, actually. I had not thought of a time limit on investigations. Certainly under the Human Rights Act, there is a right to have a speedy trial, and that did not happen in these cases.”—[Official Report, Overseas Operations Public Bill Committee, 6 October 2020; c.19, Q31.]

This issue therefore cuts into investigations, another central point that we have been considering in this Bill.

When the Minister replies, I would be interested to know whether that has been cleared. I am not sure whether things still work this way, but when I was a Minister, the usual process for bringing forward a Bill involved sending a write-round to all Departments to get their agreement before it was sanctioned to come before the House. I do not know whether that still applies, because I know that, for a lot of things that this Government do now, they do not accept the usual common-sense conventions, which are there for very good reasons—to stop this type of thing—but how will the MOD be separate from the Human Rights Act?

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

My right hon. Friend was a member of the Defence Committee, which wrote to the Secretary of State in July 2020 saying that

“the Bill may not be an effective way of achieving” the aim of protecting personnel and veterans against

“vexatious and unnecessary investigations and prosecutions”.

My right hon. Friend was a member of that Committee. Does he agree with its finding that the Bill would have been better served by scrutiny from an ad hoc Select Committee before it came before Parliament?

Photo of Kevan Jones Kevan Jones Labour, North Durham

I am a big defender of pre-legislative scrutiny. I think I said a couple of sittings ago that our current system of pre-legislative scrutiny as part of the Bill Committee process is important. However, an important Bill such as this should have been road-tested a little more than just what we are able to do here, in terms of not only scrutiny, but the process that we are going through today.

I come back to the point that I do not understand why the Bill is now before us—well, I do understand, because the Minister gave it away the other day; it is an election commitment to bring it within 100 days of taking office—rather than what would have been a better place for it, the armed forces quadrennial review next year, which could have covered those issues. Now we are going to have a strange process: we will have this Bill and then the Armed Forces Bill next year, which we are now told will cover investigations, because the Secretary of State has now set up a commission to look at that. The best thing would have been to do those two things together, but that would not have met the political commitment that was put forward.

I do not think it is too late to make some changes to the Bill to improve it on investigations. Deleting part 2 would certainly be an important part of that, because part 2 changes the status of veterans and armed forces personnel. I genuinely believe what the Minister said in a Sunday newspaper over the weekend: that he does not want this in any way to affect our armed forces personnel. As I said, if it were left to both of us, we would guarantee that this type of limitation would not apply to individuals, but eventually none of us will be here and it will be the law that takes it forward. That is the weakness.

I do not understand why the Government want to reduce the role of veterans, and certainly not this Minister, who has prided himself on trying to be a champion for veterans. It is not just me saying this, or some lawyers or anyone else; we only have to look at the transcripts of the evidence put before us by the Royal British Legion. On 8 October, we took evidence from Charles Byrne from the Royal British Legion and General Sir John McColl from Cobseo. My hon. Friend the Member for Portsmouth South asked whether this was a breach of the covenant. The covenant should be about not only protecting the rights of veterans and armed forces personnel, but, where it can, enhancing them. Charles Byrne from the RBL spoke in response to the Minister, when the Minister said:

“No, because what we are looking to do is to protect, and to ensure that our servicemen are not disadvantaged.”

Mr Byrne replied:

“I think it is protecting the MOD, rather than the service personnel—that is the debate that we have had.”––[Official Report, Overseas Operations (Service Personnel and Veterans) Public Bill Committee, 8 October 2020; c. 86, Q163.]

I think it is clear, as we have heard from other witnesses as well, that this goes against the armed forces covenant. I fully support the covenant, and not just in ensuring that the armed forces have no disadvantage and are treated the same. I take a very clear view on this. If people have served their country, they should be given certainly the same rights as everyone else, and in some cases better ones to recognise that service. That is important.

When the Minister asked:

“You do not think it is a disadvantage?”,

Mr Byrne replied:

“I think this Bill would be a breach of the armed forces covenant.”––[Official Report, Overseas Operations (Service Personnel and Veterans) Public Bill Committee, 8 October 2020; c. 85, Q159.]

Again, I do not think that that is the Minister’s intention, but an unintended consequence, so if we can delete part 2, that would go a long way to help. The Bill is supposed to be on Report and Third Reading in a fortnight’s time, but I am not sure that, in the lead-up to Remembrance Sunday, it is a good look for the Government to have a Bill before Parliament that takes rights away from veterans and members of the armed forces.

New clause 9 is a probing amendment—I will not press it to a vote—to highlight the impact of part 2 of the Bill on veterans. It states:

“Within 12 months of this Act coming into force, the Secretary of State shall commission an independent evaluation” of the impact of the Bill on access to justice for servicemen and women and reserve forces when serving overseas. I add that we need to compare that with asylum seekers and prisoners seeking to take action against the Crown. Clearly, if the provisions in this part go through unamended and do not include armed forces veterans, prisoners will have more rights.

One of the arguments put forward by the Ministry of Defence and Ministers is that only very small numbers are affected. New clause 9 would be a way of looking at the actual effect on access to justice. On the numbers, I think 94% has been quoted for those on time. This comes back to what I said this morning: yes, we are talking about small numbers, but if that number is 94%, that means 6% of veterans and armed forces personnel will not be covered and will be disadvantaged. I accept that in the Minister’s exchange there was some contention about what the actual numbers are, but for me—I make this clear to the Committee—one serviceman or woman or veteran who is denied justice by this Bill is one serviceman or woman or veteran too many.

Photo of Emma Lewell-Buck Emma Lewell-Buck Labour, South Shields 2:15 pm, 20th October 2020

On that point about the exchange between the Minister and the Committee, and the evidence sessions, is my right hon. Friend aware that the figure of 94% was based on an extrapolation of a sample of cases, and not on all post-six-year cases?

Photo of Kevan Jones Kevan Jones Labour, North Durham

It was, and that is where the disagreement about the figures comes from, and not for the first time in this Bill. Early on, we asked for the number of litigation cases, which was the reason why the Bill was introduced. We got various arguments, and one figure was 900 and another 1,000. If we want to act in the best interests of veterans, we need to know the extent of the problem, so my hon. Friend makes a good point. Again, even if we accept the figure of 94%, then 6% of people will not be able to take claims against the Ministry of Defence—including, as was argued by the personal injury lawyers, in those like the Snatch Land Rover cases and the ones that I outlined this morning. That cannot be right. I do not understand what the Government think is to be gained from taking away the rights of veterans and service personnel.

We are dealing with small numbers here, but this is important. If I was in prison—perhaps some on the Committee wish I was—and I made a claim against the Ministry of Justice, there would be certain time limits. But there are always cases under the Limitation Act that fall outside those limits. Prisoners have the right to take those cases out of time and stand before a judge, or have legal representation, to argue that they need their case considered out of time. They can do that because of section 33.

Asylum seekers can do the same. A claimant against the Ministry of Justice, whether on housing or anything else, can argue successfully to a judge that they had not brought the claim because of various circumstances, such as a refugee’s trauma from being in a war zone, and that they need a chance to bring their case, although there is no guarantee that their case will be accepted. That is the case with veterans, too. The representative from the personal injury lawyers said that the numbers of such cases are small, but when the application does work and a judge says that the time limit does not apply, it is very important. Snatch Land Rover is a great example of a case against the MOD.

Would that be a case against the armed forces? No, it would be against the MOD. No disrespect to the MOD lawyers—they are just doing their job—but if this provision is introduced, they will use that six-year backstop as a way of arguing that a case cannot go forward. The individual will have no rights whatever to go before a judge and argue that their case, for certain reasons, should be made an exception. The MOD is protected, rather than the veteran or serviceman or woman. That cannot be right.

We are brought back to the point of what is missing throughout the Bill. I accept what the Minister says: that he is passionate about these issues, and if it were down to him—if it were down to me and some others in this room, too, to be honest—veterans and servicemen and women would get first dibs every time, and quite rightly. But it will not be down to us; it will be down to officials in the Ministry of Defence.

Having worked with them, I have huge respect for officials in the Ministry of Defence, but they are in civil service mode. If they can protect the organisation, they will. That is not to be discredited. I remember dealing with lawyers in the MOD when I was there over the nuclear tests veterans cases, where, frankly, we were going to spend millions of pounds on a case that should have been settled. I successfully argued for a settlement proposal to be put forward; unfortunately, it was rejected by the other side. Again, the natural reaction was to defend the indefensible. I said, “Wait a minute—how much do you want to spend in lawyers’ fees to do this?” That is what will happen here. It will be an easy get-out for the MOD, because it will have the protection of a backstop of six years in law. The individual will no longer have the right.

Judicial oversight is a problem throughout the entire Bill. Having employed lawyers in a previous life and dealt with them over many years, am I a great fan? I am a fan of some of them, because some are very good. Some are also very bad, as the hon. Member for Darlington will attest. The point is that they do their best on behalf of their client. They are not making things up; they are using the laws that we pass in this place to advance the case that someone has presented before them. We should not be putting obstacles in their way, in terms of servicemen and women and veterans.

This is really a probing amendment. Someone asked, “Is it a bit of fun?” No, it is actually a serious point. When the average person on the famous Clapham omnibus realises that we are taking rights away from veterans and that prisoners and asylum seekers will have more rights than veterans, they will rightly be appalled.

Even if the Minister cannot accept the amendments today, I urge him to reflect on part 2 to see whether we can remove it from the Bill. We should at least ensure that the disadvantage to servicemen and women and veterans is not enshrined in law. If that happens, it will be a travesty. It would actually be a disappointment to the Minister, because he is trying to protect victims—instead, he will have done something that makes their lot in life worse. As a number of people said in the evidence sessions, servicemen and women and veterans have too few rights as it is. Taking away more of them cannot be right.

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

First, I thank the right hon. Member for North Durham. I agree with everything he has said. Of course, I raised part 2 of the Bill on Second Reading—I have major issues with it. One of the SNP’s amendments, which unfortunately was not selected, was about removing time limits completely. Perhaps a better idea would be to remove part 2 of the Bill.

Having sat through Second Reading, four sessions of oral evidence and this morning’s session, I still cannot see how a six-year limit on claims benefits veterans. I know the Minister has tried to explain the measure by saying it will allow them to make claims more easily, but the reasons why veterans are not claiming are very complex. Frankly, I have serious doubts about the time limit, as does the organisation that has arguably done more for veterans than any other: the Royal British Legion, which stated its concerns about part 2 of the Bill. It has said that, as currently drafted, part 2 introduces a time limit for civil claims from veterans, serving personnel and their families where one does not currently exist, and it risks a breach of the armed forces covenant, as there will continue to be no limit for civilians in relation to their employer.

During the evidence sessions, the Minister said it is a disadvantage to have to go and serve and put one’s life at risk. We understand that—none of us is disputing that—but we are talking about whenever we are comparing like for like, claim for claim. Does the Bill put veterans at a disadvantage? It absolutely does. The Royal British Legion has said that part 2 of the Bill should be improved to ensure that no member of the armed forces community is left subject to a time limit when pursuing a civil claim against the Ministry of Defence as an employer, and to avoid a breach of the armed forces covenant.

Personal injury awards can be substantial, so we understand why the MOD wants to minimise the opportunity for such claims, but if harm has been done to individuals that is due to negligence, why are we making it more difficult for them to seek recompense?

Earlier, I brought up the date of knowledge. There is a discussion to be had about that, because there is still a lack of clarity. I had a look at the issue over lunch and I am sure that the Minister did as well. I said earlier that the Minister had referred to the date of knowledge of the injury. We have heard examples of when that might be difficult to ascertain, and I will refer in a minute to a couple of them. But this morning, when we were referring to the Snatch Land Rovers, the Minister talked about the point of knowledge of the problem. I have had a look at the Bill, and people will have to excuse me if I have got this wrong, but I think that, in clause 11, proposed new section 7A(4) of the Human Rights Act 1998 says:

“The rule referred to in subsection (1)(b) is that overseas armed forces proceedings must be brought before the later of— the end of the period of 6 years beginning with the date on which the act complained of took place”.

Is “the act complained of” referring to when the injury took place, to when those Snatch Land Rovers were brought into service or to when we found out that there was an issue? New subsection (4) goes on to say:

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

The date of knowledge of what? Of the injury, of the issue—what is it that we are talking about? We need to know what exactly it is. The new section goes on to talk about knowledge

“of the act complained of, and…that it was an act of the Ministry of Defence or the Secretary of State for Defence.”

What is it that we are talking about? What is meant by “act”? We need clarity on that. Frankly, that grey area—that ambiguity—leaves the door open for the MOD to refuse such claims. I have real concerns about that. I hope that the Minister can provide some clarity on it.

Let me move on and talk about the numbers of veterans and personnel who could be excluded from seeking recompense for injuries. Even on the basis of the Government’s own figures, we are looking at between 19 and 50 veterans and families who would be prevented by the time limit from taking forward their claim. Why are we trying to stop veterans from taking forward claims? I simply do not understand that. The Minister has talked about his desire to support veterans, and I do believe him when he says that, but I do not understand this particular provision. Again, the Royal British Legion says that injured and bereaved veterans and families who have been found by a court to have reasonable justification to take forward a claim would be prohibited from doing so under the proposed new limit. That is a problem for me.

Let us look at the reasons why a veteran might not bring forward a claim within the six years. Hearing loss, for example, has been mentioned a number of times. It might be difficult to ascertain exactly which incident caused the hearing loss in the first place, but even if we do know when the hearing loss injury occurred, this is a progressive situation. My own grandad lost his hearing and he was thoroughly embarrassed. He did not like to speak about it; he pretended that he could hear. He did not want to seek help and when he did, he did not want the family to know. There are reasons, including embarrassment, that might prevent an individual from looking for recompense for such things.

Photo of Kevan Jones Kevan Jones Labour, North Durham 2:30 pm, 20th October 2020

I agree with the hon. Member on hearing loss cases, having dealt with such cases in shipbuilding. The person will agree that they have lost their hearing; it is about whether the hearing loss can be pinned back to where it was lost.

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

We have also heard examples of veterans who have served in multiple conflicts or operations where they have been exposed to loud noises, explosions and all sorts—which one caused the hearing loss? Could it otherwise have been caused at a firing range in the UK? That is a real difficulty, and it causes problems.

Photo of Kevan Jones Kevan Jones Labour, North Durham

If overseas operations will be excluded after six years while for cases in this country a case could be made under the Limitation Act 1980, does the hon. Member not think that will also complicate hearing loss cases, if it must be determined where the hearing loss took place? It will be difficult to disaggregate these points.

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

In such situations, we know that the person who will benefit is not the veteran. That is the problem with part 2 of the Bill and the six-year limit. There must be protections in place to ensure that veterans who have served and suffered personal injury can seek justice for those injuries.

There are other examples, such as the nuclear test veterans. It was good to hear about the work done by the right hon. Member for North Durham on that. I have had interactions with those veterans, including a constituent of my own who, sadly, died. Many have waited decades and decades for compensation and have had nothing—not even any medals to recognise the service they undertook. There are still ongoing issues, and again the MOD has denied that the cancers that those veterans have suffered are related to their service, despite a number of them having similar cancers and there being no links other than the Christmas Island testing.

I could also mention Lariam, an anti-malarial drug that can cause real issues for individuals’ mental health, but not always instantly—it can happen on a much later date. My own husband was given Lariam and suffered as a result. Thankfully, he has not had any long-term issues, but many individuals’ mental health is affected many, many years beyond that.

Photo of Jack Lopresti Jack Lopresti Conservative, Filton and Bradley Stoke

I really enjoyed the hon. Member’s speech this morning— I did not agree with most of it, but it was well presented, with a good argument made. Is she saying that there should be no time limit at all for actions being brought?

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

I thank the hon. Member for his kind comments. There is already a limit, but that limit can be looked at and overridden in certain circumstances. That should remain in place; there is no reason to take that away. We are not saying, “We encourage all veterans to wait 30 or 40 years”, but there must be some protections. There cannot be a hard stop that prevents them from taking any action.

We all understand the Bill’s purpose and why it has been brought forward, even though we might not agree with all of it and we might have issues with some of it, but part 2 of the Bill makes no sense whatever. The Bill has been sold to veterans as protecting them and looking after them, with the Government having their back. Actually, part 2 does the opposite. Why do the Government want to prevent between 19 and 50 veterans from seeking justice? I would like to know that from the Minister, because we have not yet had a decent answer on that point.

Photo of Emma Lewell-Buck Emma Lewell-Buck Labour, South Shields

It is always a pleasure to serve under your chairmanship, Mr Mundell. I rise to speak briefly about part 2 of the Bill. I will try not to detain the Committee by repeating the comments of other hon. Members.

Time and again, concerns have been expressed in written and oral submissions to this Committee—they were mentioned again today by my right hon. Friend the Member for North Durham—about the civil litigation longstop. If this part of the Bill is unamended, there is a high risk that the Ministry of Defence will not be held accountable for violations of soldiers’ and civilians’ rights—the largest proportion of claims made against the MOD are claims of negligence and of breaches of the MOD’s duty of care towards its soldiers. Between 2014 and 2019, the available data shows that such claims amounted to more than 75% of all claims.

Part 2 of the Bill will benefit only the Ministry of Defence, and yet the Ministry of Defence is the defendant in all those claims. That is a clear conflict. The Minister and the Department have created a policy that protects them from legitimate legal claims. I am unaware of any other instance of our legislation being drafted in such a way as to protect the defendant over the claimant. I find it astonishing that the Minister wants to treat our forces and veterans in that way, placing them as such gross disadvantage.

As my right hon. Friend the Member for North Durham said, there remains a lack of clarity about the number of people who would be disadvantaged by the longstop. It would be helpful if, in summing up, the Minister provided some transparent and accurate figures to clear the issue up, once and for all. We are making legislation without proper knowledge and without a proper basis.

In oral evidence, we heard over and over again that the Bill protects the MOD, but not our forces. It breaches the armed forces covenant. It gives our forces less protection than civilians and, in some cases, even prisoners. We heard that from not one or two witnesses, but a broad and wide-ranging group of organisations, some of which, traditionally, would not necessarily agree with each other: the Royal British Legion, the Centre for Military Justice, the Association of Personal Injury Lawyers, Liberty and Human Rights Watch. Written evidence struck the same chords. When the Minister gave evidence, he appeared unable to find literally anyone at all who supports the longstop. If someone does, I hope that the Minister will share that fact with us.

The whole point of Bill Committees, as I have said repeatedly, is to improve and amend legislation, so that it emerges better than it was when it arrived with us. Indeed, the Minister has stated many times on the record that he wants to work with people in and outside this place to make the Bill the very best it can be, so that it meets its intended aims. I sincerely hope that that commitment was not an empty gesture. A good way to prove that it was not is to consider our amendments, listen to our comments and take them on board, and ensure that so many people are not disadvantaged when making claims against the MOD.

Photo of Liz Twist Liz Twist Opposition Whip (Commons)

I, too, will not occupy too much of the Committee’s time, but I want to raise the issue of the impact on the ability of veterans and serving personnel to bring claims.

Yesterday, additional written evidence was circulated to us from a number of people, including Dr Jonathan Morgan of the University of Cambridge, in document OOB09, which refers to the impact of part 2 of the Bill on the ability of people to bring a claim; their rights will be restricted.

We also had evidence yesterday from Professor James Sweeney; I am afraid I do not have the reference number. He clearly points out deficiencies, and tackles head on, in paragraph 11 of his evidence, the Minister’s assertions that we are reading the provisions incorrectly. I ask the Minister and his advisers to look at that closely. We had evidence from the Association of Personal Injury Lawyers, too. We have heard comments about people’s views on personal injury lawyers and in whose interests thing are, but to me that evidence is clear and well set out.

However, the most persuasive evidence for me is the supplementary written evidence in document OOB10, presented by the Royal British Legion, which clearly sets out its concerns. We were able to question its representative in oral evidence, and the Minister took that opportunity to press them on the legion’s concerns. Its written evidence says:

Part 2 of the Bill should be improved to ensure that no member of the Armed Forces community is left subject to a time limit on pursuing a civil claim against the Ministry of Defence (MoD) as an employer, and to avoid a breach of the Armed Forces Covenant.”

I know how important the armed forces covenant is to the Minister and, indeed, to other people in this room. Most of us have worked with local authorities and other employers and organisations locally to ensure that the armed forces covenant actually means something. If the Royal British Legion, whose reason for existence is to support the armed forces and former armed forces personnel, is raising concerns about the impact of part 2 on those veterans, we really need to take note of that.

Photo of Kevan Jones Kevan Jones Labour, North Durham 2:45 pm, 20th October 2020

The hon. Member for Glasgow North West, who speaks on behalf of the SNP, raised the issue of nuclear test veterans. In 2009, when they brought their case against the MOD, it was a limitations case, because the injuries happened in the 1950s. They won it because new evidence came forward and Mr Justice Foskett argued that the limitation case could go forward. Is it not clear that if that happened now, that case would not even have been heard?

Photo of Liz Twist Liz Twist Opposition Whip (Commons)

My right hon. Friend is absolutely correct. That is why it is important that this part of the Bill be either substantially amended to protect the rights of veterans, or perhaps taken away altogether.

The Royal British Legion, talking about disadvantage under the Covenant, says:

“The Armed Forces Covenant states: ‘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…in accessing services, former members of the Armed Forces should expect the same level of support as any other citizen in society’”.

We all need to take very seriously the concerns raised by the Royal British Legion about claims and the breach of the armed forces covenant. I have no doubt that it is not the Minister’s intention to disadvantage people, but the Bill as drafted will do so. I ask him to look at this very seriously, and to consider amendments to the Bill.

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

It is good to see you back in the Chair, Mr Mundell.

I appreciate the opportunity to address some of the points raised. My intention is not to disparage Members’ intentions, because I get it: people want to support our armed forces and do not want to disadvantage them. I do not want to disadvantage them. However, some things—the data is a good example—are being totally misused to promote these points. For example, on the statement that from 2014 to 2019 there were however many thousand claims, that number includes claims in the UK that people would bring under tort or civilian law against an employer. This Bill does not apply to that; it is called the Overseas Operations (Service Personnel and Veterans) Bill. In no way are those comparisons being made in a fair manner. This Bill applies only to those allegations and claims that affect our service personnel overseas.

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

I will get to my point. There were 552 employer liability claims from what happened in Iraq and Afghanistan. Today’s Daily Mirror had sounded familiar to a couple of the speeches: it mentioned “21,000 claims”. It is total nonsense. That is the total number of claims that people have made against the MOD in the period from 2004 to 2017. They are claims in a civilian workplace environment, where there are civil liabilities claims, claims regarding exercises and so on in the UK, and breach of contract claims. In the Bill, we are talking specifically about overseas operations. Whoever is providing these figures is demonstrating a pretty basic misunderstanding of what is going on—or it is a deliberate attempt to mislead, but I am sure it is not. The two things are not comparable in any way.

Photo of Kevan Jones Kevan Jones Labour, North Durham

To me, that does not matter. Why should armed forces personnel be treated differently when something happens in this country, as opposed to overseas? It might not be in combat; it might be on a training mission, or something like that. As I said, if one veteran is disadvantaged, that is one veteran too many.

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

It does matter. Facts do matter in this debate; figures do, too.

Photo of Emma Lewell-Buck Emma Lewell-Buck Labour, South Shields

Where can we find the figures that the Minister is quoting to us?

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

The figures have been published in the impact assessment a number of times. The hon. Lady can shake her head, but again, we are in a space of alternative facts. The figures are in the impact assessment, which is before the House.

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

The Minister is talking about overseas operations. We all understand that, and that the Bill applies to those serving overseas. However, if my employer sends me overseas, and I suffer an injury there due to the negligence of my employer here in the UK, I can sue the employer for the injury. The same should be the case for veterans. It is not about whether it is overseas or here; it is about having the same rights as civilian employees.

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

I disagree, and this is why. Operational service overseas is fundamentally different from life in the UK, and from what we ask our people to do. The hon. Lady is absolutely right: we have a duty in this country to protect those overseas, whether it is against improvised explosive devices, bombs, electronic warfare, or indeed legal systems used to bring warfare by another means. That is what this Bill is trying to do.

I understand the assertion that if someone from the Royal British Legion was deployed on an operation, the six-year limit comes down. Viewed on its own, that is something that will happen to serviceperson, but not a civilian. Disadvantage is a comparable term. Disadvantage to who? The Government argue—this I am clear on—that these people are seriously disadvantaged by having no legal protection against these thousands of claims that we have seen come in over the last 15 or 20 years. What the Royal British Legion would like us to do is to put that to one side—[Interruption.] No, it is, because I have engaged with it extensively. It would like us to apply that to one side of the argument, which, again, is not legal. Under European human rights law, people are being disadvantaged and discriminated against based on the claimant, which is not legal. This cannot be brought in on one side.

Photo of Kevan Jones Kevan Jones Labour, North Durham

The Minister is taking rights away from servicemen and women. He talked about overseas operations, but let us say, for example, someone is in British Army Training Unit Suffield in northern Canada on a training exercise. If that is classed as an overseas operation, or a peacekeeping operation—

Photo of Kevan Jones Kevan Jones Labour, North Durham

A peacekeeping operation?

Photo of Kevan Jones Kevan Jones Labour, North Durham

Right. Nevertheless, there have been times—the Snatch Land Rover cases, for example—where there was quite a good reason why the case should have been argued out. Why is the Minister so determined to take that right away from people?

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

Because what the right hon. Gentleman says—I have a lot of respect for him—is simply not true. BATUS is not an operational environment. It is not a peacekeeping mission. It is a training unit mission. As I said this morning, and speaking from a point of knowledge, when it came out in the inquiry about the Snatch Land Rover cases, that is when the six-year thing started. That would not have been affected by this legislation.

We could keep raising these points, but I am not going to change my view, because it is based on the truth. I cannot suddenly say, “Yes, BATUS is a war-fighting operation, so this stuff applies.” I cannot say, “These people would be affected in the Snatch Land Rover case,” because that is simply not the case.

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

I will come back to the right hon. Gentleman in a minute. He talks about taking rights away from our service personnel. They have a right to be protected on the battlefield in all these areas. One area where they have a right to be protected is the use of lawfare to progress, and change the outcome of, a conflict through other means.

There were lots of wild sentiments thrown around—“lawyers don’t make things up,” and all the rest of it. Again, that does not collide with reality. Phil Shiner has been struck off. The reality—the world as we find it—is what this Bill is designed to deal with.

Photo of Jack Lopresti Jack Lopresti Conservative, Filton and Bradley Stoke

On a point of clarification, would a deployment in Cyprus or Estonia be covered by the Bill?

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

We are talking about overseas operations, wherever they take place outside the UK. UK operations and operations outside the UK are defined in the Bill.

Photo of Emma Lewell-Buck Emma Lewell-Buck Labour, South Shields

I think the Minister is falling foul of something that a lot of witnesses in the oral session said he would: he is confusing the criminal law with the civil law. Largely, our concerns around part 2 are about the civil aspect.

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

What is being confused here is the difference between tort and human rights claims; that was being confused a lot in the comments made just now. Regarding the evidence sessions, I accept that there are aspects of this legislation that some of the people who came in—public interest lawyers, the Association of Personal Injury Lawyers, Hilary Meredith and others—do not like. I do not dispute that for a minute, but my job is to protect those who serve on operations from all those different threats, including lawfare, which has not been done before. Other nations do it, and we have a duty to protect these people as well.

Photo of Liz Twist Liz Twist Opposition Whip (Commons)

I can understand the Minister’s concerns about some of the comments, but the Royal British Legion exists to protect people who have served in the forces. That is one of their key aims. If they are saying to us that the provisions present an issue, is it not right that we take note of that, address it, and deal with it clearly?

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

Absolutely; it is right to take note of it, and I have engaged with it extensively on this issue, but the legion does not own the covenant—nobody does. It belongs to the nation. The covenant was designed to ensure that when a service person and a civilian are in a comparable situation, the service person is at no disadvantage. It was never designed to ensure no disadvantage whatsoever. We send our people away from their families for six or seven months of a year—that is a disadvantage. We send them away to undertake dangerous work—that is a disadvantage.

The covenant was meant to mean that when two people are in the same situation, the service person is not disadvantaged, and that is why the Bill says that it applies to a civilian in these environments in exactly the same way. I heard the right hon. Member for North Durham say again this morning that civilians were not covered by this Bill. Well, they are. It is in the Bill.

Photo of Kevan Jones Kevan Jones Labour, North Durham

The Minister said these rights protect people, but the covenant is not about taking rights away from people. I know we fixate on the date of knowledge, but when he is no longer a Minister and none of us are here anymore, the Ministry of Defence lawyers will not use this provision to say that a case is time-barred. There is nothing in this Bill that says that. That is the problem he has. I do not for one minute think that he is suggesting otherwise, and he is perhaps well intentioned, but he is just wrong on this, and is trusting the MOD too much.

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

I accept the right hon. Gentleman’s point. He will not find many Ministers who will say that half is the Department’s problem in terms of how it has investigated and so on. I have a healthy interrogation of any advice I am given. I accept his point that there is a danger of abuse, but we have written into the Bill that point of knowledge. I am not fixated on it; it is just there in black and white.

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

I will come back to the right hon. Gentleman. I want to finish what I am saying—I do not want to repeat myself and bore everybody—and then I will take more interventions.

Clause 8, in conjunction with schedule 2, introduces new factors that the courts must consider when deciding whether to allow certain claims relating to overseas military operations to be brought after the normal time limit, and sets the maximum time limit for such claims at six years. The Government intend to ensure that claims for compensation for personal injuries or deaths arising from overseas military operations are assessed fairly and achieve a fair outcome for victims, for the service personnel and veterans called upon to give evidence, and for the taxpayer.

Section 2 of the Limitation Act 1980 sets an absolute time limit of six years for compensation in claims relating to most types of tort. Although sections 11 and 12 set a three-year limit for claims for personal injury or death, the three-year limit is not absolute. Section 33 of the Act gives the court discretion to allow claims to be brought beyond the time limit if it considers it fair to do so. Section 33 identifies six factors to which the court must have a particular regard when assessing fairness. In broad terms, those relate to the steps taken by the claimant to bring the claim, the reasons for delay and the effect of delay on the quality of the evidence. Those factors do not adequately recognise or reflect the uniquely challenging context of overseas military operations. The Government are concerned that unless the court is directed to consider relevant factors, it might wrongly conclude that it is fair to allow older claims to proceed. The clause, in conjunction with schedule 2, introduces three new factors that the Government consider properly reflect the operational context to which the court must have particular regard.

Photo of Kevan Jones Kevan Jones Labour, North Durham

Is it not for a lawyer, when they are arguing a limitations case, to make the case for special circumstances? They can do that now in law. If the measure goes through unamended—I accept that this is not the Minister’s intention—the MOD will use it as a way of blocking cases. We only have to look at the nuclear test veterans case of 2009 and Judge Foskett’s summing up. The MOD’s argument in the limitations hearing was that the case was out of time, but it was successfully argued that new evidence had come forward. That was possible because it was before a court of law. This measure stops that.

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

I will address that point in my final remarks on the clause. The factors that have to be considered are the extent to which 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 doing so on their mental health. The new factors reflect the reality of overseas military operations—the fact that opportunities to make detailed records at the time might be limited; that increased reliance might have to be placed on the memories of the personnel involved; and that as some of them might be suffering from mental health illnesses owing to their service, there is a human cost in doing so. The human cost obviously goes beyond that of the service person and will be felt just as much by their families and friends. Families of the military community are a core aspect of the armed forces covenant and must not be overlooked when we consider the measures in the Bill.

Clause 8, in conjunction with schedule 2, also introduces an absolute limit of six years for claims for personal injury or death arising from overseas military operations. This change brings the absolute time limit for personal injury or death claims in line with other claims for other torts that might occur on operations, such as false imprisonment. It also gives service personnel and veterans certainty that they will not be called upon indefinitely to recall often traumatic incidents that they have understandably sought to put behind them.

Finally, this clause, in conjunction with schedule 2, amends the Foreign Limitation Periods Act 1984, so that claimants cannot benefit from more generous time limits under foreign law. This change is needed for consistency and will ensure that no claim is brought after six years. I must emphasise that the Government are not seeking to stop meritorious claims or to avoid judicial scrutiny, nor are we seeking to put the armed forces or the Government generally in a more favourable position compared with their position as regards other defendants.

The changes that this clause and schedule 2 introduce go only as far as is necessary to ensure a fair outcome. They do not affect the way in which the time period is calculated or 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 courts have recognised that limitation periods have an important role to play in ensuring legal certainty and finality and in preventing injustice. The changes that this clause, in conjunction with schedule 2, introduces are a reasonable and proportionate solution to the problem of historical claims.

I will not repeat the same arguments for clauses 9 and 10, which amend the legislation in Scotland and Northern Ireland, but I will just add that the Limitation Act 1980 only covers claims brought in England and Wales. It is therefore necessary to extend similar provisions across the whole of the UK to prevent forum shopping. It would be deeply unsatisfactory if changes that the Government are introducing to achieve a fairer outcome in relation to claims brought in England and Wales could be circumvented by a claimant’s bringing their claim in Scotland or Northern Ireland instead.

Turning our attention to new clause 2, none of the measures in part 2 of the Bill will prevent service personnel, veterans or their families from bringing claims against the MOD in connection with overseas operations within a reasonable timeframe, as historically most have done anyway. The purpose of the limitation longstops is to stop historical and often vexatious claims being brought against the military on overseas operations, which put our service personnel at the mercy of being called to provide evidence long after the alleged events in question, with all the harm and anxiety that might cause them.

To ensure fairness between claimants, we have not excluded service personnel from those provisions. They will apply equally to service personnel and veterans as they will to any other person bringing a claim against the MOD in connection with overseas operations. I am confident that these measures do not break the armed forces covenant. The new factors and limitation longstops only apply to claims in connection with overseas operations and will apply to all claimants in the same way. The court’s discretion to extend the three-year time limit for death or personal injury claims and the one-year time limit for human rights claims remains unchanged in respect of any other claims, that is, those not connected to overseas operations brought against the MOD.

Additionally, our evidence suggests that 94% of those claims from service personnel are already brought within six years. We would expect that figure to rise in future, as we ensure that the armed forces community is made aware of the new measures and the relevant dates for bringing claims, including what is meant by the date of knowledge. That should encourage personnel to bring claims within six years, or earlier if possible, as after the primary time limit of three years for personal injury and death and one year for human rights claims expires, claimants must rely on persuading the courts to exercise their discretion to extend the time limit.

In summary, clauses 8 to 10, as they stand, do not breach the armed forces covenant and do not disadvantage service personnel or veterans. Let me make this clear point: on operations and in the area of modern warfare, we cannot lift human rights legislation and apply it to the battlefield. I accept that some people want to do that and think that is the right thing to do, but I respectfully disagree. The idea that people can go to court and argue for an extension produces exactly the position we find ourselves in now, where individuals such as Phil Shiner, who the right hon. Member for North Durham mentioned, have sought extensions under those situations, in order to bring thousands and thousands of claims against the MOD.

We are stuck in a position where we have to do something. In that scenario, I cannot apply something to one side, as I have indicated already, although the Legion would like me to. Similarly, we cannot take away all time limits, because that would defeat the entire purpose of the Bill, which is to provide some certainty for veterans. I accept what some hon. Members have said about people’s ability to sue within that timeframe if they are serving overseas. If they were in the UK on exercise or in Canada, it would be different, but that is because the unique nature of operations is different.

We have a duty to protect those people, as I said, both physically, from what is on the battlefield, and in the court of law. We have seen some horrendous experiences over the years. We can say, “It’s all too difficult”, and that we need to walk away—the reason why, for 40 years, no Government have done this is that it is really difficult—but we are in a position where we have to make choices: either we choose to leave the situation as it is now, letting it continue with no time limit, or we bring forward legislation to give certainty to our veterans.

Photo of Kevan Jones Kevan Jones Labour, North Durham

I am sorry—I do not agree with that. There is a way to improve the Bill, as with the issue of investigations raised earlier. We have talked about the Human Rights Act 1998, but if the Minister reads the judgment in the Smith case, he will see that the Supreme Court was clear about the Act’s limitations. Will the Minister explain the proposal to have a one-year time limit on human rights cases? Will he explain how he will limit appeal if section 33 does not apply to human rights cases, which it will not if the Bill goes through? How does that fit with our obligations under the convention?

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

Our obligations under the European convention on human rights are not changed in any way. We have to design an investigative framework that is resilient and robust in the face of challenge under the convention. I have to disagree with the right hon. Gentleman—clearly, there is a difference of opinion here. That is allowed, that is what this place is all about, but the reality is that those on the Government Benches have a different view, which is that we cannot let the situation that has persisted for the past 40 years continue ad infinitum. We have to bring in fair and proportionate legislation to go beyond saying nice things about our people, or, “Isn’t it terrible that these people get dragged through the courts?”, while being prepared to do absolutely nothing about it. I am afraid that those days have come to an end. We have to legislate to protect our people. I will give way once more, and then I will finish.

Photo of Kevan Jones Kevan Jones Labour, North Durham

There is nothing fair about taking rights away from veterans. On the Human Rights Act, the one-year limit to bring a claim is clearly still there, but at present someone could bring a late claim under section 33 if at the time they thought it was not there. The Minister said that we would be abiding by the convention. Will he point to where in the convention—on our side, in the Human Rights Act—it says that time limits and out-of-time claims are applicable? I cannot see that.

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

As the right hon. Gentleman will remember from his time in government, all legislation has to be signed off as ECHR compliant. The Department has done that, recognising our responsibilities under the legislation and meeting its requirements. He talks about rights, but people such as Bob Campbell have a right to be protected from experiences such as his over the past 17 years, and the soldiers who went through al-Sweady have a right to be protected as well. This is not all in one direction—it is not a one-way street—and we are clear that those people have a right to be protected in the jobs that we asked them to do. That is what the clause is all about, so I ask that it stand part of the Bill.

Question put and agreed to.

Clause 8 accordingly ordered to stand part of the Bill.