Overseas Operations (Service Personnel and Veterans) Bill

Lord Hendy Excerpts

Committee stage
Thursday 11th March 2021 Lords Chamber

[Baroness Chakrabarti (Lab) [V]]

My Lords, I cannot hope to improve on the powerful and compelling forensic critique of Part 2 that has just been offered by the noble Lord, Lord Thomas of Gresford, but perhaps I may lend my support to his general approach and that of his noble friend Lady Smith of Newnham in these amendments. They probe and highlight the problems with interfering with judicial discretion in the manner proposed in Part 2.

A lot has been said about the Bill in general being about providing reassurance to our veterans. Reassurance can be important, particularly where it is a practical improvement on problematic law. But when reassurance is more political and is provided against a false problem that has been raised in political rhetoric, we all need to be far more concerned about interfering with judicial discretion. In the other place—although not so much in this place the last time we met—there has sometimes been the language of claims being used in relation to Part 1 and Part 2. Part 1 is about prosecution which, understandably, veterans will fear in certain difficult contexts. However, this is about civil claims, where the presumption of innocence that must and should apply in criminal proceedings does not apply. This ought to be as fair a contest as possible between two civil parties.

Invariably in the context of these claims, as the noble Lord, Lord Thomas, has set out so clearly, we are talking about the MoD, a great and well-resourced department of state which is the defendant. Sometimes claimants will claim to be the victims of war crimes, but there will also be no small number of veterans themselves. That has been lost in parts of the public discourse and certainly in the debate in the other place. I am therefore grateful to the noble Lord, Lord Thomas, for bringing this forward.

The false war between veterans on the one hand and lawyers on the other is particularly pernicious in the context of Part 2 when veterans’ groups and the lawyers who represent them are in concert in their concerns about the way that Part 2 protects the MoD not from false claims, against which the department is well protected, but from genuine claims where, sometimes because of the problems of overseas conflict and the difficulties that veterans themselves have faced in those dangerous situations, six years is too short a time. Some open and well-applied judicial discretion is what is required.

Without further ado, I shall make way for my noble friend Lord Hendy, who I understand has direct experience of representing at least one veteran’s mother.

[Lord Hendy (Lab) [V]]

My Lords, I cannot improve on the powerful contributions made by the noble Lord, Lord Thomas of Gresford, and my noble friend Lady Chakrabarti. However, perhaps I may add one point of legal detail which might assist. If I make the point now, I will not need to do it in my later contributions.

Section 7(5)(b) of the Human Rights Act 1998 to which these amendments relate provides a one-year time limit or

“such longer period as the court … considers equitable having regard to all the circumstances”.

As regards any application to extend that time period, Clause 11 of this Bill seeks to require the court to have regard to the ability of witnesses in Her Majesty’s forces to remember or to have recorded events and to the impact of the litigation on the mental health of any HM forces witness.

Amendment 21 merely seeks to redress the balance by reference also to the interests of the claimant. It is a modest amendment. The movers might have gone a lot further and brought limitation under the Human Rights Act into line with the parallel provisions of the Limitation Act 1980 in civil cases. I will remind the House briefly of those provisions. They impose a limit of six years for claims in tort or contract, but in Section 3 this is reduced to three years for personal injury claims; that is, three years from the date of the accrual of the cause of action or from the date of knowledge if later. There is much jurisprudence on the date of knowledge, as the noble Lord, Lord Faulks, alluded to on Tuesday. However, the period can be extended. This is an area of law that is very familiar to anyone who has practised in the field of personal injuries.

Section 33(1) of the Limitation Act 1980 permits a court to allow an action to proceed out of time, if it

“appears … that it would be equitable”,

having regard to the prejudice if it were to do so to the defendant and to the claimant. In addition, Section 33(3) specifies that the court, in making a determination,

“shall have regard to all the circumstances of the case”.

In particular, it must have regard to certain specified factors:

“(a) the length of, and the reasons for, the delay on the part of the plaintiff; (b) the extent to which, having regard to the delay, the evidence adduced or likely to be adduced by the plaintiff or the defendant is or is likely to be less cogent than if the action had been brought within the time”


limits set out in the Act;

“(c) the conduct of the defendant after the cause of action arose, including the extent (if any) to which he responded to requests reasonably made by the plaintiff for information or inspection for the purpose of ascertaining facts which were or might be relevant to the plaintiff’s cause of action … (d) the duration of any disability of the plaintiff arising after the date of the accrual of the cause of action; (e) the extent to which the plaintiff acted promptly and reasonably once he knew”

he might have a claim; and, finally,

“(f) the steps, if any, taken by the plaintiff to obtain medical, legal or other expert advice and the nature of any such advice”.

If the Minister is not minded to concede the modest amendments sought, I commend to him altering the Bill to incorporate these familiar provisions of the Limitation Act, which has worked well in all manner of cases over the last 40 years. No justification appears for imposing harsher limitation provisions for actions in respect of personal injuries or death that relate to overseas operations of the Armed Forces.

This provision in the Bill may save the MoD a few bob, but it will give no reassurance to military personnel who are claimants or to members of their families, such as the lady for whom I acted some years ago, as I explained at Second Reading. Her son had been killed by a shell fired at his tank by another British tank outside Basra. The claim was based on the MoD’s failure to fit the tanks with adequate and available identification kit and to adequately train tank commanders. The case was ultimately settled by the MoD, after many years.

The noble Baroness, Lady Goldie, kindly wrote to me after Second Reading to explain the time limits proposed in the Bill for cases such as this, but I regret to say that, in spite of her clarity in elucidating the Bill, I was not reassured. Military personnel on overseas operations need to know that they—and, if they die, their mums, dads and children—can make a claim against the MoD, if it turns out to be at fault. They should not be subject to hurdles to which other claimants are not subject. The Government need not fear vexatious claims. Anyone who has practised law in this field from bench or bar knows that the courts are astute enough not to permit vexatious claims. The Bill, unamended, will time-bar some vexatious claims, but it will equally time-bar meritorious claims. That is not forgivable. It is no answer to say that there will be few of them; there should be none.

A final point arises from an argument advanced by the Minister in response to Amendment 29, moved by my noble and learned friend Lord Falconer, late on Tuesday night. The Minister suggested that the amendment would result in an unjustifiable difference in treatment between different categories of claimants and that this, therefore, would offend against the European convention. Presumably he had Article 14 in mind, which prohibits discrimination on grounds including “other status”.

Yet these provisions in the Bill impose a difference in treatment between those making a claim for personal injuries or death that relate to overseas operations of the Armed Forces and those who make such a claim that does not relate to overseas operations of the Armed Forces. I and, it appears, many Members of your Lordships’ House regard that as unjustifiable. I would be interested to hear how the Minister justifies that difference in treatment under Article 14 or, indeed, Article 2, which protects life by law.

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[Baroness Chakrabarti (Lab) [V]]

It is always a pleasure to follow my noble and learned friend Lord Morris of Aberavon, who is ever youthful and eloquent, but of course it is the noble Lord, Lord Thomas, who is on a particular roll with these amendments, one that I do not want to impede for too long—save to say that Amendment 22 in particular reveals and reflects what a terrible disservice Part 2 does to veterans in the context of difficult and complex overseas operations. In particular, it highlights that it is not just the date of the harm that is an issue but the date of knowledge of causation, which can be so complex in the course of overseas operations. In the practical reality of a legal aid landscape, where most people including, tragically, veterans, have no ready access to advice and representation, it could be a very long time before a troubled veteran even knows that they had the right to bring a claim. That is a problem for everyone in a legal aid landscape that has been virtually decimated, but it is particularly shameful for any Government to be making it harder for their own veterans to claim redress against the MoD where appropriate and put an absolute bar up at six years.

The point about causation is so important; the noble Lord, Lord Thomas, describes it as

“the manifestation of the harm resulting from that act which is the subject of the claim”.

A veteran may well know that they are injured and know that they have, for example, experienced a number of different traumatic and potentially harming events in a complex situation of warfare, but causation can be a very difficult thing to discover. This will be even more problematic in the context of psychological harm and, possibly, other physical harms—to hearing, for example. It may be very difficult to learn, let alone to prove, that it was friendly fire and not enemy fire, or that it was negligence in provision of equipment that caused the harm.

The absolute six-year bar put up in relation to veterans against their former employer would be shocking enough in the context of factory workers domestically. Given the Minister’s remarks on the previous groups, that we should be particularly sensitive to the difference between what he described as domestic litigation and the special issues around overseas operations, it seems to me that the noble Lord, Lord Thomas of Gresford, has really hit the nail on the head in this group and some of those that follow.

[Lord Hendy (Lab) [V]]

My Lords, I have practically nothing to add to the contributions of the noble Lord, Lord Thomas of Gresford, and my noble friend Lady Chakrabarti. Their arguments are powerful and appear irresistible.

I just add one small point. I mentioned a case in which I was involved for the mother of a serviceman killed in a tank because of friendly fire. That case in fact took more than 12 years from his death until the payment of an award by way of settlement by the Ministry of Defence. There was no delay on any side; there was litigation in the meanwhile, and the test case went to the Supreme Court, and so on. But there were inordinate difficulties in pursuing that claim—in finding out what had happened, what the MoD record was on the fitting of identification kit, what the training programmes were and whether they were defective, obtaining expert evidence on these points, and so on—to know whether the case was meritorious, as it turned out to be.

These cases are not easy. As I say, the logic of the proposal from the noble Lord, Lord Thomas, is irresistible.