British Overseas Troops: Civil Liability Claims

Monday 20th July 2020 Lords Chamber

Commons Urgent Question

The following Answer to an Urgent Question was given on Thursday 16 July in the House of Commons.

“We have introduced the Overseas Operations (Service Personnel and Veterans) Bill to lance the boil of lawfare and to protect our people from the relentless cycle of reinvestigations against our Armed Forces. Let me be absolutely clear: none of the measures will prevent the Ministry of Defence from being held to account for any wrongdoing.

To allay any further misunderstanding, let me provide some context. The Bill takes account of the uniquely challenging circumstances of overseas operations. It reassures our personnel that they will not be called on endlessly to defend against historic claims. It does that by introducing what we are calling a longstop. This restricts to an absolute maximum of six years the time limit for bringing civil claims or Human Rights Act claims for personal injury or death in connection with overseas operations.

It is simply wrong to assert that the Bill prevents service personnel, veterans or their relatives from bringing claims, because it does not change how the time limit is calculated. That will continue to be determined from either the date of the incident or date of knowledge. Conditions like post-traumatic stress disorder may not be diagnosed until much later, so the six years would start from the date of diagnosis.

The spirit of the Armed Forces covenant runs right through the legislation. Fairness is at its heart. We want to ensure that all claims are assessed fairly to achieve a fair outcome, yes, for veterans, but also for victims, service personnel and the taxpayer.

Yes, service personnel and veterans will still be able to bring claims against the MoD for such conditions, even if they are more than six years from the date of the incident. But also yes, this Government are going to war against lawfare. The days of veterans living in a persistent state of worry simply for having served this nation are coming to an end. Under this Prime Minister and under this Government, we will restore fairness to the process.”

14:00

[Lord Touhig (Lab) [V]]

My Lords, the Armed Forces covenant states that our forces community

“should face no disadvantage compared to other citizens”,

yet this Bill does precisely that. It disadvantages veterans, service men and women and their families. It does so by putting a six-year time limit on them bringing claims against the MoD for personal injury or death. Why do this?

[The Minister of State, Ministry of Defence (Baroness Goldie) (Con) [V]]

I thank the noble Lord for his question. The Government are committed to introducing these protections to provide greater certainty for our service personnel and veterans. The other side of the coin to which the noble Lord refers is that, for too long, many of our service personnel and veterans have lived under the shadow of endless investigations and vexatious claims for increasingly historical events that occurred in the uniquely complex environment of armed conflict. We regard that as unfair and we regard the Bill as a proportionate response to that challenge.

[Baroness Smith of Newnham (LD) [V]]

My Lords, building on the question from the noble Lord, Lord Touhig, I want to press the Minister a little further. This is not about vexatious claims; it is about claims that service personnel, veterans and their families may be able to bring. What assessment have the Government made of the changes to cap it at a six-year long-stop?

[Baroness Goldie [V]]

I reassure the noble Baroness that this Bill will not abolish the right of people to make claims. It puts into context that a time limit will now surround when those claims can be brought. As I said to the noble Lord, Lord Touhig, that is fair and proportionate. It is fair to our service men and women, to victims and to potential claimants.

[Lord Dannatt (CB) [V]]

My Lords, when does the Minister believe that Her Majesty’s Government will extend legislation in the overseas operations Bill to cover operations in Northern Ireland? I seem to recall that my first deployment in Northern Ireland in 1971 was by sea from Liverpool, so I regard this as a legitimate question. On a pertinent point, can the Minister confirm that should Major Bob Campbell, having been questioned and investigated eight times about the drowning of Said Shabram in Iraq in 2003, be exonerated by the Iraq Fatality Investigations inquiry, he will be within his rights to sue the Ministry of Defence should he be so inclined? Seventeen years of investigation have broken this decorated soldier, ruined his career and wrecked his mental health.

[Baroness Goldie [V]]

I will answer the latter part of the noble Lord’s question first. I cannot comment on a specific case but, clearly, every individual is entitled to seek legal advice and consider what is appropriate action for them. On his first point, I assure him that, yes, a Northern Ireland Bill is coming forth to deal with similar issues; the Northern Ireland Office is currently in the process of preparing it. We expect more information in early course.

[Lord Garnier (Con) [V]]

My Lords, if the factors set out in Clause 3 of the Bill that support a decision not to prosecute five years after an offence are so powerful, why do they not apply before five years have elapsed?

[Baroness Goldie [V]]

Clause 3, to which my noble and learned friend refers, requires that a prosecutor must take into account the “exceptional demands and stresses” of overseas operations and the adverse impact that they can have on service personnel. While this requirement applies only after five years have elapsed, prosecutors may already take account of these circumstances in their decision-making at any stage. It is precisely to provide some form of protection for our service personnel and veterans and give them greater certainty that we believe it is important that the Bill makes consideration of these matters a statutory requirement once five years or more have elapsed.

[Lord West of Spithead (Lab) [V]]

My Lords, there are pressing reasons for this Bill, as military personnel have felt let down by successive Governments and the nation they serve. Historically, there was an understanding when one went into action that if any sense of doubt about actions arose, as long as one had acted with good intent, any balance of doubt would be in the service man or woman’s interest. That seems to have ceased to be the case. Even if that is not so, the perception was that our people are vulnerable to repeated litigation; perceptions are important. However, I am concerned about some of the wording in the Bill. Does it open up service men and women to greater risk of investigation and prosecution by international courts?

[Baroness Goldie [V]]

First, I thank the noble Lord for his helpful comments; he speaks from singular experience in the field. The risk that he alludes to is not likely to materialise. As I said earlier, the whole point is that the Bill is framed not as abolishing rights but as placing these rights for exercise within the context of time limits. It is not a statute of limitations; it is not a pardon; and it is not an amnesty. I hope that, with a strong framework in our domestic legislation, such a manifestation will be unlikely.

[Viscount Waverley (CB) [V]]

My Lords, following on from that, I suggest that current policy is an affront to the sacrifice, service and spirit of the military covenant, which should be enshrined in law. Will this Government do that? If so, when?

[Baroness Goldie [V]]

I thank the noble Viscount for his pertinent question. We have committed to enshrining the military covenant in law. That issue is currently being investigated and we hope to be able to confirm further details in due course.

[Lord Truscott (Ind Lab) [V]]

My Lords, I note noble Lords’ criticism but generally I support the Bill. While no one is above the law, there have clearly been attempts at vexatious prosecutions and false claims against members of our Armed Forces many years after the alleged incident. In the case of innocent members of our Armed Forces and their families, this has been deeply distressing and unjust. It is time that our Armed Forces are protected from the greed of some opportunistic lawyers and their clients. I therefore think that, on the whole, this Bill achieves the right balance.

[Baroness Goldie [V]]

I thank the noble Lord for his observations. I am afraid that the sound quality was very distorted so I did not detect a question, but I will look at Hansard and if I need to return to the noble Lord on another matter, I will do so.

[Lord Polak (Con)]

My Lords, we should all celebrate the fact that, in Johnny Mercer, there is a Minister who supports and champions our veterans. He led from the front in acknowledging last week in the other place that he would be

“absolutely happy to amend the legislation … to get it right”.—[Official Report, Commons, 16/7/20; col. 1674.]

The Bill will ensure that veterans who have served our country so bravely are freed from the reprehensible actions of certain human rights lawyers who have abused the system and made the lives of some of our veterans and their families an utter misery. Does my noble friend agree that the thrust of the Bill should not, and must not, be changed?

[Baroness Goldie [V]]

I thank my noble friend for his helpful comments and his tribute to my honourable friend, Mr Johnny Mercer, who is a noted proponent of the interests of veterans and a passionate supporter of this Bill. My noble friend gets to the kernel of the issue. I fully anticipate debate about a number of aspects of the Bill—that is healthy and the Government will of course look carefully at what your Lordships have to say when the Bill comes to your Lordships’ House—but I can confirm for my noble friend that, for the sake of our veterans and armed services personnel, it is important that the underlying principle and under- pinning thrust of the Bill be preserved.

[Lord Randall of Uxbridge (Con) [V]]

Can the Minister reassure the House that the Bill will not deny essential rights to victims and potential claimants?

[Baroness Goldie [V]]

I am happy to give that reassurance to my noble friend. As I explained earlier, the Bill is neither a statute of limitations nor an amnesty but an attempt to strike a fair balance that recognises the legitimate rights of victims and potential claimants. However, it weighs those against the undoubted obligations and pressures which confront service personnel when, in the name of this country, we deploy them overseas to carry out operations and they find themselves in an unusual and very challenging environment. That is why the Bill has tried to strike that balance appropriately.

14:11

Sitting suspended.