Overseas Operations (Service Personnel and Veterans) Bill

Debate between Lord Faulks and Baroness Smith of Newnham

Committee stage
Thursday 11th March 2021 Lords Chamber

[Lord Faulks (Non-Afl) [V]]

My Lords, once again, it is a pleasure to follow the noble Lord, Lord Hendy. In considering all these amendments, we should bear in mind that not all the claims that this legislation is concerned with—in fact, only a small proportion—are actually brought by veterans. The majority of the claims that have given rise to this litigation are brought by those who allege that they have been the victims of wrongs done to them by the military. One advantage of trying to put an end finally to litigation is that those members of the military who might be involved in this litigation, potentially as witnesses for the defendant or, indeed, for the claimant, can put an end to the matter in their minds. Nobody would be concealing anything deliberately but, once you have left theatre—overseas operations come to an end—it is a considerable burden to be troubled by some incident, about which there may be little corroboration or evidence, and to have to go to court, if necessary, to deal with allegations more than six years after the event.

These amendments are, of course, concerned with date of knowledge, and the legislation provides for an extension from the six-year long-stop period for date of knowledge. Incidentally, long-stop periods are not only in this Bill; they exist in other fields of law—for example, in the Latent Damage Act. As I said previously, and as the noble Lord, Lord Hendy, acknowledged, the date of knowledge is a difficult matter for courts, but they have shown themselves—helped by provisions in Sections 11 and 14 of the Limitation Act—able to find a proper response to difficulties that individuals may have in being aware that they have a cause of action.

The real issue is when the clock starts ticking. In the normal event, it starts ticking when the incident that gives rise to the claim occurs; in these cases, the possibility for litigation will end after six years, unless there is an extension of one year because of an extended date of knowledge. The provisions in the Limitation Act dealing with personal injury claims do not actually provide for a six-year period from the date of knowledge, as these amendments do; they provide at the maximum for three years. In other words, the clock starts ticking for three years after the incident occurs, in the normal case, and three years if there is a postponed date of knowledge. So this six-year extension is in fact wider than exists in conventional limitation periods for negligence cases. There is no equivalent of a date-of-knowledge provision in Human Rights Act cases; it is all dealt with under the provisions of Section 7 of the Human Rights Act.

One must be careful not to make too close a comparison between claims in negligence and claims under the Human Rights Act. As Lord Bingham said in a famous case, the Human Rights Act is not a tort statute. For the most part, these claims for personal injuries are much better brought in negligence. In fact, the claims under the Human Rights Act were usually advanced on the basis of an investigative duty that tends to be attached to these claims, which is one of the reasons why they were relied upon.

I respectfully suggest, although I understand what lies behind them, that these amendments go into territory that they should not go into and extend the period longer than it is desirable that anybody concerned in these types of cases should have to endure.

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

My Lords, in this suite of amendments we are focusing on a relatively narrow area. On this occasion, I should be slightly relived that the noble Lord, Lord Faulks, does not entirely agree with the movers of the amendment, because at least it gives me some additional points to respond to.

I take the point that there might be a shorter period within civil law and domestically, but there is a very clear difference between overseas operations and the civilians and military who might have to bring claims, and what might happen in a civilian context in the United Kingdom. As Emma Norton pointed out in her evidence to the All- Party Groups on Drones and on the Rule of Law, if something happened

“within the UK more than 6 years ago, courts would remain able to extend time limits”,

but if something happened overseas the courts would not have that right. As my noble friend Lord Thomas of Gresford pointed out, what is being proposed is unique in the British justice system—a new category of claims arising from overseas operations in respect of which the courts would have no right to give an extension.

It is clearly right that claims should be brought expeditiously and dealt with expeditiously, but sometimes it will not be possible for cases to be brought within the time limits the Government are suggesting. It is surely right to look for ways to ensure that claimants who may have not been in a position to bring a claim within a year of date of knowledge can bring the claim, and further discretion can be brought.

As with amendments in the previous and subsequent groups, if the Minister does not feel able to accept the language of our amendments, perhaps he might suggest how claimants who have cases arising from overseas operations will not be disadvantaged by Part 2 of the Bill.

--- Later in debate ---

[Lord Faulks (Non-Afl) [V]]

My Lords, I make it clear that I do not take the view, as the noble Baroness, Lady Chakrabarti, seemed to suggest, that we should not worry too much about limitation periods because this would impact more on victims who were not in the military. That is not my view at all and I do not think that I expressed it. I do not believe that there should be any distinction between categories of claimants on what the limitation period should be.

The question is whether, as a matter of public policy, whoever is the claimant, there is a public interest in litigation coming to an end. That is what underlies all limitation periods in all sorts of circumstances. Six years, which at the moment is the longstop, has been taken as reasonable, having regard to all the difficulties that may exist in bringing claims. However, the particular challenges of overseas operations, for whoever the claimant is, are such that that is a fairly lengthy period.

I do not believe that many of the claims that have been brought would in any way fall foul of either the primary period in negligence of three years or even the one-year period under the Human Rights Act. Six years is quite a long period. In my experience of personal injury actions in other fields, it is very unusual for a court, in its discretion under Section 33, to disapply limitation for such a long period, except in very unusual circumstances. Those circumstances tend to be in cases that are, in any event, covered by date- of-knowledge provisions—for example, latent disease or something of that sort. I am absolutely not concerned to bias anyone, but simply ask whether there is a public interest in there being an end to litigation.

The noble Lord, Lord Thomas, raised a good question about Northern Ireland. As I understand it, there is likely to be a separate piece of legislation dealing with Northern Ireland in due course and I wait with interest to see what that is. My feeling about the provisions on limitation remains the same. I am not entirely sure that they are necessary, because the existing limitation periods are sufficiently sensitive to deal with some of the injustices that could arise from late claims. This is part of the agenda that the Government have to reassure veterans. The idea that it is entirely designed to protect the MoD is a somewhat cynical response. Reassurance for the veterans is a not unworthy aim but not, I entirely accept, if it runs the risk of causing injustice. For the moment, I am not convinced that it does.

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

My Lords, I am glad to hear that the noble Lord, Lord Faulks, does not want to bias anyone; I am sure that is absolutely right and we are all on the same page on that. However, he talked of a public interest in having a period of limitation. Clearly, there is a public interest here, but there is also a private, individual one. The amendments in my name and that of my noble friend Lord Thomas of Gresford, try to get that balance right. The noble Baroness, Lady Chakrabarti, put the point very well by saying that we should not be talking about taking the role of the courts out of this entirely: there needs to be some discretion. Amendment 23 begins to rebalance this.

The noble Lord, Lord Faulks, is right that, clearly, there is a period in which people can bring cases but, if our previous set of amendments, which would extend the point from one to six years after the date of knowledge, were not accepted, we would need some mechanism that allowed a bit of discretion because, at the moment, there would be none for the courts. As such, Amendment 23 is desirable in its own right, but it is even more important if other amendments are not accepted, either now or when they are put forward by the Government, or when they are moved on Report.

Could the Minister give a further response on the date of knowledge? In opening his remarks on the previous set of amendments, clarifying a point he made on Tuesday, he said that the 94% of cases that were brought within—or what would be within—time were within six years not just of the incident but of the date of knowledge. If that is the case, does that not make it even more incumbent on the Government to look again at the date of knowledge as a relevant time point to have in the Bill—and not one but six years?