Examination of Witnesses

Overseas Operations (Service Personnel and Veterans) Bill – in a Public Bill Committee at 2:02 pm on 6th October 2020.

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Ahmed Al-Nahhas and Emma Norton gave evidence.

Photo of David Mundell David Mundell Conservative, Dumfriesshire, Clydesdale and Tweeddale 3:00 pm, 6th October 2020

Before we move to our next set of witnesses, I should say that in the event that there is a Division in the House during this session, which there could be—this is for the information of the witnesses as well—we would initially suspend the sitting for 15 minutes. If the vote takes longer than that and Members cannot get back, we will deal with that pragmatically.

We are now joined by Ahmed Al-Nahhas and Emma Norton. Mr Al-Nahhas, perhaps you could say who you are so that we can confirm that we can hear you. I know from my mispronunciation of your name that you can hear me.

Ahmed Al-Nahhas:

My name is Ahmed Al-Nahhas. I am a representative of the Association of Personal Injury Lawyers, which is a not-for-profit organisation that campaigns for victims of injuries and negligence. I am also a solicitor advocate.

Emma Norton:

My name is Emma Norton. I am the director and lawyer at the Centre for Military Justice. I have developed a dry cough in the last two days, which is why I am appearing virtually—I apologise in advance for any coughing that I may do.

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

Thank you very much in advance for giving evidence today. I will ask Emma Lewell-Buck to start the evidence session.

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

Good afternoon to both of you. As you are aware, the main purpose of the Bill is to provide greater legal protections to forces and veterans. In your opinion, does it fully do that?Q

Ahmed Al-Nahhas:

No, APIL’s position is that the Bill does not afford that. We acknowledge the good intentions behind the Bill. However, in respect of part 2 of the Bill, which I am here to discuss—the civil claims aspect—we believe that it strips service personnel and veterans of certain rights in relation to civil claims and their rights under the European convention on human rights.

Emma Norton:

I would agree with that and I will not repeat it. I would say that one of the major flaws in the Bill is that it does not address the issue of the investigations that gave rise to all the problems that we are dealing with today. I think you heard that in the previous evidence; it has been a thread that has been running throughout the evidence that the Committee has heard today.

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

Q Bearing in mind your answers, I think I know the answer to the next question. Do either of you feel that it will reduce the number of investigations and reinvestigations or not?

Ahmed Al-Nahhas:

I may pass that question to Emma, who is here primarily to deal with those issues in respect of investigations. My remit is in respect of civil claims.

Emma Norton:

I think there were very serious problems with the original investigations that took place into the allegations of harm in Iraq and Afghanistan. That is what made it relatively easy for courts to find that, time and again, fresh investigations needed to be conducted, which then gave rise to further litigation. The responses from the Ministry of Defence to those adverse findings did not go far enough. The investigations that we had had time and again never got to the bottom of what had happened.

As witnesses have said, the longer period of time that you get between the event and the investigation, the harder it is to get to the bottom of what happened. If we were serious about really addressing the issues that Mr Campbell and other veterans have described, we would be looking at what kinds of systems and structures that we could build now and that would ensure that this does not happen again. What kinds of investigations could we set up and design that could function in the context of overseas operations? I am afraid that until that happens, these problems are going to recur and I do not think the Bill addresses them.

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

Q Would either of you advocate a pause on the Bill going through right now until some of the issues can be ironed out properly?

Emma Norton:

I am happy to say that I would, personally. That would have been a sensible way to go about it—to have a consultation that would really hear from individuals who had been directly affected by investigations, as well as victims, and to speak to experts who can talk to the challenges of building a really good system of investigations overseas, because it is really difficult and we do not underestimate that. There are lots of things that could be done and could be done better.

There was a service justice review, and I know we are expecting some further responses to the recommendations in that review, but that was published in February and it had taken two years to get to. That contained some really interesting ideas about how we could improve service policing and the quality of prosecutorial decision making. I know that there are lots of other ideas—ideas about maybe getting greater degrees of civilian oversight and input into military policing overseas, or possibly having judicial oversight of decisions to detain insurgents and reviews of those kinds of decisions. It would have been more sensible to have those discussions first and then look at what was needed by way of amendments to the criminal law. It feels very much—we have heard this a couple of times today—that this is a cart before the horse situation.

Ahmed Al-Nahhas:

I would add my agreement to that. APIL’s concern is that the impact assessment does not go far enough and is not clear. I would welcome a pause so that a proper impact assessment can be taken and further expert evidence explored.

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

Thank you both. My colleague, Kevan Jones, wants to come in quickly on investigations as well.

Photo of Kevan Jones Kevan Jones Labour, North Durham

Q On investigations, a theme has come out in the reading and in this morning’s session. We have time limits here for bringing prosecutions. Would you suggest time limits for investigations? The Human Rights Act says, I think, you have got to have speedy investigations. Even without time limits, is there a role for judicial oversight of those investigations as they are ongoing—an investigation could get to a point where independent judicial oversight could say, “Nothing further is going to be gained from taking this prosecution any further”? What are your thoughts on that?

Emma Norton:

I do not think you can have a set time limit for an investigation. I think an investigation needs to take as long as it takes, as long as it is being conducted expeditiously. The problem with the original responses to allegations of really serious abuse overseas was that those allegations were not responded to sufficiently, certainly in accordance with our convention-compliant obligations, which are that they needed to be sufficiently independent, sufficiently well-resourced, sufficiently prompt, adequate—all those kinds of things. I do not think that setting an arbitrary time limit on what would be criminal investigations is necessarily helpful. If we think about how police conduct criminal investigations domestically, although there are time limits in terms of issues around police bail and things like that, there are no hard and fast time limits within which police need to complete those investigations, although obviously they should do them as quickly as possible, because otherwise the defendant is prejudiced.

Photo of Kevan Jones Kevan Jones Labour, North Durham

Q What about actually having a review of the investigation—an independent review of those investigations?

Emma Norton:

In terms of how that would function overseas, I can see the benefit. It may be that when you have sufficient levels of civilian input into those investigations or oversight into those investigations, or judicial oversight into decisions to detain in theatre, then that may not be necessary; you could inject that level of requisite independence in those ways. This is something that would really benefit from a wider consultation with experts in criminal law and procedure, who are experienced in criminal law and procedure but also in the challenges of having investigations overseas. We have not had that.

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

Q Going back to my earlier question, does the Bill open up the possibility of more prosecutions in the ICC?

Ahmed Al-Nahhas:

I am sorry, I cannot comment on criminal matters.

Emma Norton:

I am not an expert in international criminal law, but if an otherwise credible allegation of a war crime was not proceeded with because of the Bill, that by definition increases the risk that those matters would be taken up by the ICC. That is something, of course, that our Judge Advocate General Jeff Blackett has very real concerns about and has spoken about. I know a lot of others also have very serious concerns about that.

We have heard a lot about veterans and their understandable fear and anxiety. We have heard less from very senior and formerw members of the armed forces who are really concerned about these provisions—the criminal side of the Bill as well as the civil side—and feel they are not in accordance with the Army’s values and standards. The message the Bill will project to the rest of the world about how the Army wishes to conduct itself is really serious, and they feel quite despairing about it. I was speaking to a former brigadier this morning who served 36 years, and he said that he was really ashamed of the Bill. So I think there is a real concern.

Photo of Sarah Atherton Sarah Atherton Conservative, Wrexham

Hello, Emma. It is good to see you again. I am intrigued with what you just said. A blunt question to you: do you feel that the Bill is necessary?Q

Emma Norton:

What is necessary is for what happened in the past never to happen again—definitely. I just do not think that the Bill will fix it, for the reasons I have given. I will not go over them again, but they go to the lack of willingness inside the MOD to look at those allegations at the time.

I think we are in a different place now. The MOD has learned a huge amount from all those errors. I would say that the MOD has learned from some of the litigation; there have been some very positive outcomes from that, and that is missing from the debate. I just do not think that the Bill fixes those problems sufficiently.

Photo of Sarah Atherton Sarah Atherton Conservative, Wrexham

Q Are you concerned about the interface between the service justice system and, perhaps, the service complaints ombudsman and what role they could play—if you feel that the Bill could be improved?

Emma Norton:

Hilary Meredith mentioned this morning that the ombudsman could have a role here. I think she was looking at whether some sort of compensation or ex gratia payment scheme could be made or some form of redress could be given to the soldiers subjected to this cycle of investigation. That was a really interesting idea. I know that, separately, the ombudsman is very under-resourced, so that would need a whole separate discussion as well.

The interplay with the service justice system is something you should ask the Judge Advocate General about when you speak to him later, because—obviously—he has huge amounts of experience of issues arising where somebody is not convicted of the main charge but is perhaps convicted of a lesser charge under the court martial.

Photo of Liz Twist Liz Twist Opposition Whip (Commons)

Mr Al-Nahhas, how aware are troops that they can privately claim for their injuries?Q

Ahmed Al-Nahhas:

Good afternoon. I think it is a feature of military claims that service personnel are largely unaware of their legal rights to bring a civil claim. I often find in my own practice—many of our members have also reported this—that they will, in fact, be misinformed of their legal rights. This may be because there is confusion in their chain of command. Indeed, we have heard of many cases in which the chain of command will misinform them and say that they should wait until the end of their service before bringing a civil claim, which usually means that they are out of time by the time they bring a claim. In other cases there is confusion between civil claims and the armed forces compensation scheme, which is a separate, no-fault scheme, which has a much longer period of time in which to apply—normally seven years. In answer to your direct question, I think they are very unaware and, in fact, a lot of the time they are misinformed.

Photo of Liz Twist Liz Twist Opposition Whip (Commons)

I see that you are nodding, Emma. Is there anything that you would like to add?Q

Emma Norton:

Just that that is entirely my experience as well. I have not advised people about overseas claims, but I advise them about claims arising in other respects, and that is a very, very common observation, yes.

Photo of Liz Twist Liz Twist Opposition Whip (Commons)

Q Returning to Mr Al-Nahhas, after what period of time will troops usually be aware of the fact that they can claim for injuries? You said that there is often a delay.

Ahmed Al-Nahhas:

There is often a delay. In fact, I have dealt with many hundreds of inquiries, or at least many of the lawyers who APIL and I work with have dealt with many hundreds of inquiries, that are many, many years out of time. You will have calls from service personnel who have just finished their 22 years in service, and they will call up and inquire about the opportunity to bring a civil claim, and you have to tell them that actually they are about a decade out. So, it does vary, but more often than not they are quite a few years out of time.

Photo of Liz Twist Liz Twist Opposition Whip (Commons)

Q Could the Ministry of Defence do more to make troops aware of that route to compensation, in your view?

Ahmed Al-Nahhas:

Absolutely—forgive me for interrupting you, but absolutely I think they could. In fact, at the moment I do not think that they do anything to inform service personnel of their rights to bring a civil claim. I am not suggesting that as an organisation they should be shouting from the rooftops and saying to service personnel, “You should really explore your opportunity to sue us”. However, I think that the Ministry of Defence has an obligation under the armed forces covenant to be fair to service personnel. They do provide them with information about the AFCS, but, as I said, there is a much longer period of time to claim under that scheme.

I think that we also need to bear it in mind that service personnel are quite unique legal creatures in a way. For example, they are not allowed, if we are comparing them to civilians, to join a trade union. So, if you were a civilian and you were injured, you might speak to your trade union and get some advice about what claims you might bring. They may even point you in the direction of a solicitor. That often does not happen with service personnel. So, yes, I think the MOD needs to address this and be fairer with service personnel about the information available to them.

Photo of Liz Twist Liz Twist Opposition Whip (Commons)

Q You mentioned the armed forces covenant. What do you think could be the impact of this Bill on the armed forces covenant?

Ahmed Al-Nahhas:

I think that the Bill, as drafted, is potentially in danger of breaching the armed forces covenant, and I will explain why. As I mentioned earlier, service personnel are quite unique legal creatures. They do not actually have the same legal rights as civilians. So, just to take an example, service personnel have very limited rights to bring a claim in the employment tribunal, save for issues such as discrimination. However, if this Bill were to be passed, they would not—beyond the six-year longstop—be able to rely on section 33 of the Limitation Act 1980 in respect of civil claims. They would not be able to bring those claims, which may be worthy but are actually brought very late in the day, whereas civilians might have the opportunity to use section 33 of the 1980 Act.

Of course, the other aspect of the Bill is the stripping away of reliance on the European convention of human rights. So, in many senses, if this Bill were to pass, service personnel would have less civil rights and less human rights. By analogy, they will have less rights than a prisoner, so I do not see how that squares with the armed forces covenant. I am very concerned about that.

Photo of Liz Twist Liz Twist Opposition Whip (Commons)

Q You mentioned the time limits. Can I ask you about the difference between the point of knowledge, as written in the Bill, and the point of diagnosis, which is when the Government have referred to the six-year longstop as starting? How clear cut are the questions about those dates of knowledge and diagnosis in your view?

Ahmed Al-Nahhas:

If I may, I will answer your question in two answers, because I think that there are two parts to it. The first is the difference between the date of knowledge and the date of diagnosis. The date of knowledge is the date when the courts will infer that a claimant realises that they have a significant injury and makes the connection between that injury and the person whose fault it was. The three-year time limit in civil claims starts from that date of knowledge. A date of diagnosis is a factor that may be taken into account when the court considers the date of knowledge. The court may assume that, if somebody is diagnosed with a condition and is told by a doctor what they have, that will move them a long way toward obtaining their date of knowledge. I think that there has been some confusion about that in some aspects of discussions.

Could I ask you to repeat the second part of your question, please?

Photo of Liz Twist Liz Twist Opposition Whip (Commons)

How clear cut are those questions about the date of knowledge and the date of diagnosis?

Ahmed Al-Nahhas:

They are not clear cut at all. In fact, they are incredibly complex, because it is about the date of knowledge relating to a particular claim by that particular service person in their circumstances. The facts will change from case to case. You cannot prepare arguments for this sort of thing. You have to assess their merits on a case-by-case basis. They are very complex arguments, and they may well lead to satellite litigation within civil claims.

I wish not to take up too much time on this question, but I will just explain that normally in civil claims you issue a claim and it will proceed on the way. It will take a certain amount of time, evidence will be exchanged and you will end up in trial. When you have date-of-knowledge arguments or limitation arguments, it may well encourage the courts to order a split trial, or indeed the parties to apply for one, so that this issue of the deadline is determined first. That invariably leads to increased costs, in my experience.

Photo of Liz Twist Liz Twist Opposition Whip (Commons)

Q Following on from that, in the experience of your members, does the MOD contest evidence given by service personnel about the nature and timeframe of their injuries?

Ahmed Al-Nahhas:

Invariably. The MOD has very robust lawyers who do a good job. Like any lawyer, they look to take advantage of the law and to act in their client’s best interests. I am certainly not suggesting that they are doing anything wrong by using these arguments. However, I have never had a case—never—in almost a decade of litigating exclusively against the Ministry of Defence in which limitation is an issue and the lawyers have not raised it or sought to take advantage of that argument in order to either strike out my client’s case or to negotiate a settlement downwards. My answer to your question is: invariably.

Photo of Liz Twist Liz Twist Opposition Whip (Commons)

Q In summary, how do you think the Bill will impact the number of personnel claiming privately for their injuries?

Ahmed Al-Nahhas:

That is a difficult question to answer. 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.

Photo of Liz Twist Liz Twist Opposition Whip (Commons)

Thank you. I want to ask Ms Norton a few more detailed questions. Are you okay? You look as if you are suffering.

Emma Norton:

I am okay. I am muting myself, but I am okay.

Photo of Liz Twist Liz Twist Opposition Whip (Commons)

Q Further to the questions that my colleague Emma Lewell-Buck asked you, what is the evidence that courts cannot strike out baseless legal claims?

Emma Norton:

We are talking about civil claims. I am not aware of any evidence that the courts cannot do that. They do it all the time; it is a fairly standard part of civil law procedure. Civil procedure rule 3.4—I think—says that if a claim discloses no reasonable prospect of success, the defendant can apply for strike-out, and the strike-out can be given. There are some really good examples of that happening where the MOD has been the beneficiary. A good example was the second batch of the Kenya litigants’ claims, which were thrown out a few years ago now. Something like 40,000 claims were dismissed on the basis that they were too old and it would be unfair on the defendant, which was the Ministry of Defence, to defend the claims because it no longer had the evidence available to have any reasonable prospect of defending them. The courts are perfectly capable of striking out stale claims and they do it all the time.

I want to pick up on a couple of Ahmed’s points, which were excellent. The point about the Limitation Act is really important. The Limitation Act contains a range of different criteria that, in my opinion, are duplicated by the new criteria that are set down in the Bill. Section 33 of the Limitation Act enables the court to consider whether allowing the claim out of time is going to prejudice the defendant, in particular, or anybody else. It requires the court to have regard to all the circumstances of the case, which would include the fact that the claim arose from overseas operations, and all the difficulties and complexities of that environment. I think the courts have more than enough powers.

Photo of Liz Twist Liz Twist Opposition Whip (Commons)

Q Do the courts have an unfettered legal route into matters of combat decision making?

Emma Norton:

No, they do not, and I respectfully disagree with the previous witnesses on that issue.

In the Smith case, which Dr Morgan cited, the Supreme Court made it very clear that the principle of combat immunity is absolutely sound. In that case, the Ministry of Defence was trying to expand combat immunity to cover a range of factors that the court said were never intended to be covered by that. It was just heat of battle, in theatre. The families of the deceased—remember, they were young soldiers who got into those Land Rovers, or other vehicles that had been procured, and suffered dreadful injuries and death—wanted to challenge the decisions made by individuals back here in Whitehall, behind a desk, to procure that equipment for use in Iraq. That was the decision that they wanted to challenge. All the court said was that combat immunity did not go that far. It has not been chipped away or reduced. So no, I do not agree with that.

Photo of Liz Twist Liz Twist Opposition Whip (Commons)

Q That picks up on my next question, which was about the principle of combat immunity. That is all my questions. Thank you very much.

Photo of Stuart Anderson Stuart Anderson Conservative, Wolverhampton South West

Q When we have listened to evidence today we have heard from veterans and from legal representatives like yourself. There is a disparity between veterans, who really want this Bill and say how let down they will be if it does not go through, and legal representatives, who say, “Stop.” As legal representatives are there to defend or to represent our troops, as you have done, where is that breakdown happening and why, Mr Al-Nahhas?

Ahmed Al-Nahhas:

I am not going to comment on the criminal aspect, but from my perspective there is a need to protect service personnel from spurious criminal claims, which we are looking into. That brings forward a lot of people who want this Act in place. I am not sure whether that is the incentive behind part 2 of the Bill, which is the civil aspect.

I can share with you, as a representative of APIL, that many of our members have many hundreds of clients who are service personnel. I have been doing this for a long time. The people we act for come to us seriously injured and needing compensation. The tools that are available to us as lawyers are the civil claim route and the Human Rights Act. If you start taking those rights away from veterans and service personnel then you will be, in my view, doing them an injustice.

I do not envy you. I can see that this a fierce debate and there are different sides to the argument. I would caution that that should be a sign to all of us that there should be a pause to the Bill and further exploration. I wonder to what extent the confusion is caused by the fact that the Bill tries to do two things. It tries to resolve the issues in respect of criminal law and it also addresses civil issues, which are incredibly different. That is a cautionary word that I would pass to you.

Emma Norton:

We heard some compelling and moving testimony this morning. I was particularly struck by the gentleman from the British Armed Forces Federation—in fact, both witnesses spoke about the fear in the veteran community about being dragged off to court and having knocks on the door at 3 o’clock in the morning. Both of them indicated that they felt that that fear was ill founded and based on misunderstandings of what is actually happening.

Looking at the number of prosecutions that have actually been brought, let alone the number of convictions, it is quite stark. It is a very small number, and it is not reflected in the level of fear and anxiety in the veteran community. I do not underestimate that, but I think the question becomes: what do we do to meet that fear and anxiety? How do we reduce it? We reduce it by being honest with them about the real extent of the problem and by addressing the causes of the problem, which were the failures, early in the day, which the Minister acknowledged—the early failures to investigate these allegations. Had that happened, the unfairly accused would have been exonerated years ago and the victims would have had justice as well.

That is my concern about the Bill: veterans think that they want it, and I understand that, but I am not entirely sure. Indeed, the previous witnesses all agreed that it does not address the issue of investigations—the Attorney General for Northern Ireland has said it does not address the issues of investigations.

Photo of Stuart Anderson Stuart Anderson Conservative, Wolverhampton South West

Q We are where we are now, and we need to protect troops moving forward. They will be serving in our overseas operations this year, next year and so on. We can keep saying it does not protect veterans from Northern Ireland. I served in Northern Ireland, and I know many hundreds of veterans who have served in such environments, and there is separate legislation for that. We need to put that to one side with this, but we need to do something moving forward.

You say these things amplify the fear. The veteran community is very small, so we all know someone who is expecting a knock on the door. That is really amplified, because there is a brotherhood and sisterhood that has gone through the forces. When one person is affected, everybody is affected. Nothing has been brought in so far, and now we are at the start point. A major fear I have is that I keep hearing people saying stop. It has taken decades to get here. I do not know how long I will be a politician, but if I have a long career, we could still be saying stop, because people will never find a perfect Bill.

I hear what you are saying, but I think it goes against what the veteran community wants and is crying out for. As you have heard today, and with the greatest respect—I value what you are saying—every person we are seeing has a different view on this. As politicians, we need to find the best way to get the Bill through. If the Bill were to be stopped, I know the absolute lack of trust and heartbreak that the veteran community would feel. We have to use what we have and move that forward. I respect what you have said, but I felt that it was important to express how the heart of the veteran community is feeling about this.

Emma Norton:

I do understand that. You say that every person that has appeared before you has a different view; in fact, it has been a running thread throughout all of this. Everybody seems to agree that the problem is the lack of independence in those early investigations, and we still have a lot of questions, and need to have discussions, about how to improve that. If we addressed that, it would be a much safer basis to proceed and face the future. It would also be litigation-proof for the MOD; if you have investigations that are solid, independent and secure, they would be litigation-proof. That would be good for the victims, and it would be excellent for the soldiers.

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

Q May I ask, following those last questions, whether part 2 has been brought in stealthily off the back of part 1?

Ahmed Al-Nahhas:

Yes, I believe so. What you are giving veterans with one hand, you are taking away with the other. That is a confused approach to legislation, and I am very concerned about it. Does that answer your question?

Emma Norton:

I do not have much to add to that, except to say that I agree and that it is quite extraordinary that part 2 will only benefit the Ministry of Defence, and the Ministry of Defence is the defendant in all those claims. That is quite extraordinary.

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

Q Is there a danger that the hard stop of six years could prevent things such as inefficiencies in equipment from coming to light?

Ahmed Al-Nahhas:

There is definitely a risk with any hard stop. APIL’s main concern is that taking away the flexibility of section 33 is a real danger. You are touching on accountability here; I heard your question to the previous academics about that, and it is important.

May I share an example from a case of mine? It was the wife of a serviceperson who died in Iraq in 2005. At the time he died—he died in a Snatch Land Rover due to an improvised explosive device—she had no idea whatsoever that the Ministry of Defence was culpable in any way. It was not until more than a decade later, when the Chilcot report came out, that fingers started to be pointed towards the Ministry of Defence. That report stated that the provision of Snatch Land Rovers was woeful and put service personnel’s lives at risk.

The wife later sought to bring a civil claim for her and her children. At that stage, 10 years after the death, her claim was already technically out of time. We had further delays because she was dealing with cancer and going through treatment. That sounds like quite an exceptional case, but we have had similar situations—I brought a claim that technically was out of time, and if this Bill had been in place, that claim could not have proceeded. The claim was settled for several hundred thousand pounds, and brought her some justice and some compensation.

I mention that example for two reasons. First, you are talking about the accountability of these investigations that take so long; secondly, adding to that the complexity and problems of a Bill that introduces a longstop is opening the doors to some real problems here.

Emma Norton:

May I make a quick point on that? Another thing that is overlooked is the benefit of some of this litigation that we are discussing now to soldiers and the MOD more widely. The Snatch Land Rovers are a good example of that, because those Land Rovers are no longer used in those kinds of conflict. If those families had not brought those claims, we would not be in this much-improved situation. That is an example of the positive outcomes of litigation, and that is worth reminding you of.

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

Q Could part 2 of the Bill be seen, then, as harmful to serving personnel and veterans?

Ahmed Al-Nahhas:

Yes, potentially. It would not encourage people to come forward and bring claims. It is normally a very brave lawyer who takes on a case that is out of time in the first instance; the reason section 33 is there is that it allows flexibility only in the most exceptional of cases. If you were to take that away and introduce this Bill, you would see less litigation on these issues. Emma raises an important point; it is certainly my experience and the experience of our members that it is primarily through litigation that organisations such as the MOD listen and change. That is one of the aspects of removing those protections that causes us great concern.

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

Q I am not sure whether it was you, Ahmed, or Emma who mentioned the issue of hearing loss earlier. I am wondering what happens if veterans or serving personnel have suffered an injury that cannot be attributed to a single event—for example, a number of things could contribute to PTSD. I am not a lawyer, so how does it work under this legislation if there is some dubiety over which particular event caused the injury?

Ahmed Al-Nahhas:

That is one of the big problems with this Bill: it will encourage a great deal more argument. As I said in my answer to the previous question, I think the Ministry of Defence will seek to use this Bill to strike out claims. Using noise-induced hearing loss as an example, as you did, that is a very typical injury that service personnel suffer. They normally get compensated through the AFCS, but where there is negligence, they can get significant compensation. By “negligence”, I mean where the Ministry of Defence has, for example, not provided sufficient training or sufficient equipment to protect that serviceperson’s ears.

Those exposures to harmful noise can happen throughout a career. It becomes very complex, because as a lawyer you are investigating the entirety of someone’s career, with their medical records in one hand and their personnel file in the other. You are looking at overseas operations, maybe in Iraq or Afghanistan, and you have to explore whether they were exposed to a certain level of noise that may have been harmful. If I can put it simply, they are complicated enough as they are. Introducing this Bill will only do two things: it will increase the challenge to service personnel in bringing claims, and it will complicate claims unnecessarily.

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

Q Thank you. I do not know whether you have any additional comments on that, Emma.

Emma Norton:

No, I do not have anything to add on that. I was just going to say that there are often references to the armed forces compensation scheme, and it might be worth briefly mentioning on behalf of service personnel how dreadful they find it to try to operate that scheme. Ahmed has more experience of this than I do, but a lot of my clients have described to me how bureaucratic, difficult, slow and stressful it is, and it is true to say that the awards you would generally expect to recover from that scheme are significantly lower than those you would expect to recover if you succeeded in court. Ahmed will correct me if I am wrong about that, but I think it is a point worth making.

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

Q My final question, playing devil’s advocate I suppose, is, what benefit is there to veterans from part 2 of the Bill?

Ahmed Al-Nahhas:

I am struggling, to be honest with you. As Emma pointed out, this is all about civil claims that are brought against the Ministry of Defence; it is not about civil claims that are brought against service personnel, so I am really struggling to find any advantage for service personnel. When you are stripping away their access to section 33 of the Limitation Act, you are ignoring those exceptional cases in which a judge may think, “You know what? This case is out of time, but there are really good reasons why we should proceed with it.” It may be for reasons of accountability, which we have touched on, or it may be because that particular claimant deserves some justice. When you start stripping that away and then start stripping away the protections under the Human Rights Act, service personnel are left vulnerable—more vulnerable than civilians, more vulnerable than prisoners. I do not understand what advantage they are getting out of this.

Emma Norton:

I agree with that. I do not have anything to add to that.

Photo of Kevan Jones Kevan Jones Labour, North Durham

Q I struggle to find consistent statistics about civilian claims against the MOD, and some people have clearly given the impression that all civilian claims are by Phil Shiner-type claimants. As a former Minister, I know that a lot of them are from serving personnel, veterans and family members. Are there any statistics on how many claims armed forces personnel, family members and veterans bring against the MOD each year?

Ahmed Al-Nahhas:

There are, sir. They are published by the MOD on an annual basis. The MOD split the figures according to the type of claim that is being brought. What you are looking for is what they term employer’s liability claims. The figures are available online. I am happy to provide them, but I am sure you have quicker access to them than I do.

Photo of Kevan Jones Kevan Jones Labour, North Durham

Q In terms of your experience of those claims and claims by individuals who are not from the MOD—low-flying claims and other negligence claims that are not to do with operations or the MOD, but related activities—have you any idea of how many we are talking about? Are they published anywhere?

Ahmed Al-Nahhas:

They do split them. I do not have them to hand, unfortunately, but they separate them out, so maybe you will glean more from that. I am sorry that I cannot assist further. My understanding is that the Bill will affect the vast majority of the civil claims that are brought against the Ministry of Defence, which are the employer’s liability claims. The main provisions that the MOD break them down into are non-freezing cold injury claims, which are a mainstay of civil claims that are brought, and are in relation to negligent cold exposures, and noise-induced hearing loss, in relation to negligent exposure to loud noises. The others relate to industrial disease—things like asbestos—and then they have a quota that is defined as “other”. With a freedom of information request, we may be able to dive a bit more into those statistics. I hope that helps.

Photo of Sarah Atherton Sarah Atherton Conservative, Wrexham

Q Mr Al-Nahhas, you are talking to the uninitiated here. I absolutely agree that litigation is a strong conduit for change. For families who feel that they have been unjustly treated, how do they fund claiming and who funds the litigators?

Ahmed Al-Nahhas:

That is a very good question. It depends on what they agree with their lawyer. In the industry, the norm is to provide something called a conditional fee agreement. Where you can establish that a claim has good prospects of success, you may, as a lawyer, offer a service person’s family, in relation to your example, a CFA, where you do not charge them unless you win. It is conditional on certain terms. These days, there are a lot of rules that regulate how much lawyers can charge. Normally, for example, and taking a rule of thumb, they cannot exceed the damages that you recover for the individual. In the past, there were fewer constraints on the extent of lawyers’ fees.

There are lots of lawyers out there who are specialists and who offer no win, no fee agreements to service personnel and their families. The only way that service personnel or their families may be required to pay legal costs normally is that they sometimes have to pay a chunk of their costs, related to what lawyers would define as unrecovered costs, which are things that they cannot recover from the Ministry of Defence, but as long as the claim is successful, in this context, it would be the Ministry of Defence that pays the lawyer’s bill. I hope that answers your question.

Photo of Stuart Anderson Stuart Anderson Conservative, Wolverhampton South West

Q If they are successful, what percentage is taken from the soldier’s claim, on average, for the solicitors?

Ahmed Al-Nahhas:

It depends on the terms offered by the lawyers. They can vary, typically between 15% and 25% of the damages that are recovered. There are certain caps, but that is typically what you might find in the industry.

Photo of Peter Gibson Peter Gibson Conservative, Darlington

Q I have two quick questions for Ahmed. In terms of the claims that you have brought for veterans, how many times have you had to use the dispensation of limitation under section 33? And are you able to share with us your success rate in terms of the claims that you win and those that you lose for veterans?

Ahmed Al-Nahhas:

As I am representing APIL, I would not be able to share specific numbers, but I am very happy to share my experiences on section 33. I would say that it is a small fraction of cases that are pursued that will have to rely on section 33.

Photo of Peter Gibson Peter Gibson Conservative, Darlington

Q Just to put some data on that, how many claims does a small fraction look like in practice, over a period of 15 years?

Ahmed Al-Nahhas:

To give you an idea, it may be that two out of 100 cases that we manage would be at risk of being out of time—maybe 5% at most. On whether or not you succeed with a section 33 argument, well, the only time I went to court on a section 33 argument, I lost. I took it to the Court of Appeal, and I lost there, too. I think that might indicate to you how difficult it is to succeed there. The judges really do not engage in a liberal application of section 33.

As a lawyer, if you are partaking on a case that is out of time, you need to be brave, and it is very rare. Often or not, in some of these cases where there is a section 33 argument, they may be settled along the way, but the fact that the claim is out of time might be a factor that affects the settlement figure. I hope that answers your question.

Photo of Peter Gibson Peter Gibson Conservative, Darlington

Q Thank you. So it is incredibly rare that you would need to use section 33.

Ahmed Al-Nahhas:

In answer to your direct question, yes, it is incredibly rare that you use it, but that is dependent on the lawyer and whether they are willing to take on riskier cases. On the whole, it is not something that lawyers engage in easily. But the key about section 33 is that you will come across those cases, like the one I explained earlier involving the widow of the serviceperson, where they are demanding justice. They are worthy cases, and you use section 33 because that is the flexibility in the system. That is the conduit through which judges can achieve justice, even if you are out of time.

Photo of Peter Gibson Peter Gibson Conservative, Darlington

Q My second question is about success and failure. How many cases do you win and how many do you lose?

Ahmed Al-Nahhas:

That depends on the definition of win. What is interesting is that most of the claims—civil claims in this area—will tend to settle. The MOD will publish, with the same document I mentioned earlier, the figures in respect of settlements that it pays out. I think that last year it spent £131 million in respect of compensation and legal costs. I do not think it has separated what is legal costs—

Photo of Peter Gibson Peter Gibson Conservative, Darlington

Q I am trying to establish in how many cases you succeed in recovering compensation and in how many you do not. Obviously, one subsidises the other. Are you able to share those percentages with us?

Ahmed Al-Nahhas:

I could not give you an accurate estimate here. I am a representative of APIL, representing hundreds of solicitors across the country in this field. It may be that I can provide written evidence, if that would assist the Committee.

Photo of Peter Gibson Peter Gibson Conservative, Darlington

That would be welcome, thank you.

Ahmed Al-Nahhas:

Of course. I am sorry that I could not assist you immediately.

Photo of Stuart Anderson Stuart Anderson Conservative, Wolverhampton South West

Q I have a supplementary question about a no win, no fee where a young rifleman has a previous injury. If you or the other solicitors do not deem it to have a good chance of success—those were your words—how would a young rifleman fund his legal case?

Ahmed Al-Nahhas:

I have no idea. They may need to rely on charity. They may need to rely on family. They have very limited options. Actually, they often have a big challenge: they need to find a specialist in this field to begin with, because it is not easy to sue the Ministry of Defence and it is not easy to understand the specialties and complexities of such cases. They will often go to another lawyer for a second opinion, and one hopes that that lawyer would take on their case, but there are no guarantees, and particularly on cases that are out of time. You may be going around the houses to tens of lawyers who will all say to you, “I’m really sorry, but you are out of time. There is nothing I can do for you.” That is one of my concerns with the Bill.

Photo of Stuart Anderson Stuart Anderson Conservative, Wolverhampton South West

Q How many cases have you turned down that have been over six years?

Ahmed Al-Nahhas:

I would say, on average, in my own practice, probably between 70% and 80% of inquiries that come in will be rejected because they are out of time. Forgive me, that is anecdotal and off the top of my head. I was not expecting that question but, if it gives you an idea, the vast majority of the inquiries we get are from people who are frankly out of time.

Photo of Kevan Jones Kevan Jones Labour, North Durham

Q Does that not demonstrate the point made earlier about people being aware of their rights, in terms of taking cases forward? To answer Stuart’s point about cases, charities take test cases and cases that might not be seen as winners. Section 33, which this takes away from veterans, applies to me if I want to sue someone and it applies, as you said, to a prisoner wanting to sue the Ministry of Justice. Why should it be different for a prisoner and for a veteran?

Ahmed Al-Nahhas:

It should not—it definitely should not. You are taking away legal rights from service personnel who already have fewer legal rights as it is. You really are stripping the tree there.

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

If no other Member wishes to ask a question, I thank both our witnesses for their contributions to the Committee this afternoon. Thank you very much indeed.