Overseas Operations (Service Personnel and Veterans) Bill

Lord Hendy Excerpts

Report stage
Tuesday 13th April 2021 Lords Chamber

[Lord Mackay of Clashfern (Con) [V]]

My Lords, all the amendments that the noble Baroness, Lady Ritchie of Downpatrick, has put before your Lordships would delete from this Bill its application to Northern Ireland. In other words, the result of these amendments would be that this defence Bill would not affect Northern Ireland.

It is vital that all defence legislation for the United Kingdom applies to the United Kingdom because the purpose of that body of legislation is the protection and defence of the whole United Kingdom. Therefore, whatever solution may be necessary for what the noble Baroness speaks of, it certainly cannot be to delete from the defence legislation of Northern Ireland an Act that will affect the defence legislation of the rest of the United Kingdom. I strongly suggest that this is not a feasible way of proceeding. I am all in favour of her having a meeting with the Minister in early course— I hope that the Minister will have time for that—but I do not think that we in your Lordships’ House can possibly accept this solution.

So far as the amendment in the names of the noble Baroness, Lady Hoey, and the noble Lord, Lord Lexden, is concerned, the question of how to deal with this matter is very tricky indeed. I have been anxious about it for a long time, and I do not see it getting any easier to solve. I do not feel able to comment on the wisdom of that amendment at this time, but I would be happy to hear what the Minister has to say about it.

[Lord Hendy (Lab) [V]]

My Lords, it is a privilege to follow the noble and learned Lord, Lord Mackay of Clashfern, although on this occasion I do not reach the same conclusion as he does. I support the amendments in the name of the noble Baroness, Lady Ritchie of Downpatrick, for the reasons that she has eloquently given. I wish to add to that only by emphasising that it is not acceptable to undermine the commitment to the European Convention on Human Rights provided by the Belfast agreement. Recent events have emphasised the importance of upholding and, as my noble friend Lady Chakrabarti pointed out, being seen to uphold, both the letter and the spirit of that agreement.

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Without this amendment, the proposal in the Bill is a bit of a hostage to fortune. We simply do not know what its effect would be—maybe not very great, as the noble Lord, Lord Faulks, said, but if it is there, it would seem to be unfair. I cannot see anything wrong in bringing out a class of individuals to whom this amendment is directed. In principle, what is wrong with identifying a particular class of claimants, particularly where they can be seen to be, in particular situations, disadvantaged, as we are contemplating in this Bill? For these general reasons, I am inclined to support Amendment 13.

[Lord Hendy (Lab) [V]]

My Lords, it is an honour to follow the noble and learned Lord, Lord Hope of Craighead. I too support the amendments. In particular, I support wholeheartedly Amendments 7 and 8, which, if accepted, would obviate the need for Amendment 13. I differ from the noble Lord, Lord Thomas of Gresford, and the noble and learned Lord, Lord Hope of Craighead, in relation to Amendment 13, which in my view does not go far enough.

Clauses 8 and 9 would have the effect of preventing a number—a small number, I accept—of meritorious civil actions being brought by service personnel, or their estates and dependants, against the Ministry of Defence, where the latter has negligently caused their injury or death. I see no justification for imposing harsher limitation provisions for actions in respect of personal injuries or death that relate to overseas operations of the Armed Forces than in relation to other civil claims. The factual matrix in which a claim arises will always be a crucial factor in the determination of the court’s discretion to allow late claims. The imposition of the time bar in Clauses 8 to10 will undermine the confidence of military personnel who might be injured or die on overseas operations. They knowingly and bravely take the risk of injury or death in enemy action, but they do not consent to risks created by the negligence of the Ministry of Defence, as in the case of my former client, the mother of a soldier killed by a high-explosive shell fired at his tank from another British tank, which had mistaken it for the enemy. After interminable investigations, belated disclosure of documents and the work of our expert, the case was made that the Ministry of Defence was at fault for a long-standing failure to fit identification equipment and for a consistent failure to train tank commanders properly in identification.

The Ministry of Defence eventually settled the case with a substantial payment but no admission of liability. It took years. Had the proposed regime of Clauses 8 to 10 been in place, my client’s action might never have got off the ground. I feel I owe it to those who might in the future be in the sad position of my former client, having lost a son or daughter, to resist the inclusion of these clauses.

What can be the justification for imposing a bar on such claimants, a bar which does not apply to any other claimants other than in relation to members of the Armed Forces who suffer personal injury or death on overseas operations? The ostensible purpose is to bar vexatious claims but, with respect, that is nonsense. Bill or no Bill, there will always be unmeritorious claims. The courts have a powerful armoury of mechanisms for throwing them out. They do not need the blunt instrument of Clauses 8 to 10. Although those clauses would time bar some vexatious claims, they would equally time bar meritorious claims. That is not forgivable. It is no answer to say that there would be few of the latter. There should be none.

In any event, as the noble Lord, Lord Thomas of Gresford, pointed out, all claims are subject to the Limitation Act, which imposes strict time limits on them. These may only be exceeded by express permission of the court—an exercise of the court’s discretion which is subject to specified and comprehensive conditions under that Act.

The imposition of the time bar in Clauses 8 to 10 is likely to undermine the confidence of military personnel who might be injured or die on overseas operations. They should not be subject to hurdles to which other claimants are not.

I agree with the sentiment of Amendment 13, which seeks to exempt service personnel from the time bar of Clauses 8 to 10. However, its shortfall is that it fails to bring the estate and dependants of such personnel within the exemption, thus allowing the time bar to apply to those in the position of my former client. Amendments 7 and 8 are therefore preferable. I had hoped that those who tabled them would have pressed them to a Division.

[Lord Boyce (CB) [V]]

My Lords, Amendment 13 is about the six-year time limit imposed by the Bill on those who have been engaged on overseas operations, and the ability of such servicepeople to bring any grievances against the MoD after that time. As we have already heard, this would have the perverse effect of limiting the rights of individual service personnel by restricting their access to legal remedies for harms caused by their employers. This would not apply to their counterparts not engaged on overseas operations.

In Committee, the Minister’s comment that, based on past statistics, this might apply only in a very small number of instances was specious. The Armed Forces are all of one company and thus should all be treated the same. Even if only one person were to be affected, he or she should not be discriminated against. It cannot be just for such situations to be allowed, so I support Amendment 13.

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.

Overseas Operations (Service Personnel and Veterans) Bill

Lord Hendy Excerpts

2nd reading & 2nd reading (Hansard) & 2nd reading (Hansard): House of Lords
Wednesday 20th January 2021 Lords Chamber

[Lord Hendy (Lab) [V]]

My Lords, I share, without repeating them, the concerns expressed by so many noble Lords over Part 1 of the Bill and the proposal in Clause 12 to consider derogation from the European convention. I wish to focus my few minutes on Part 2, on civil claims. As a barrister, I resent and refute the denigration of members of that honourable profession uttered by some noble Lords today, but I will not indulge myself by developing that further.

Some years ago, I was instructed in a matter that was very different from my usual diet of industrial relations cases. Mrs Smith, as I will call her to protect her anonymity, was a dignified lady who lost her son in the Iraq war of 2003. He was a tank commander, killed with a fellow crew member when his tank was hit by two high-explosive shells.

The facts emerged over time. First, she learned that the shells were fired by a British tank in an adjacent battle group. She felt not the slightest urge to sue the commander of that tank—friendly-fire accidents are all too frequent—but over the years more relevant material emerged. There was an inquest. Reports from various prolonged official inquiries by the MoD and the military police were obtained. Documents slowly came to light. A military expert was instructed on behalf of the bereaved.

Eventually it became clear that there had been serious failings on the part of the Ministry of Defence. Modern sophisticated combat identification equipment, urged on the MoD long before 2003 by the National Audit Office and a Commons Select Committee, had not been fitted. Up-to-date identification training courses had not been provided to either of the tank commanders. There were other errors too, involving the demarcation of arcs of fire and so on. Nearly 15 years after her son’s death, without any suggestion of any delay on her part or indeed that of her lawyers, the case was finally settled with the payment of a significant sum to her by the MoD—as usual, without an admission of liability.

My point is that it takes a very long time in such complex cases, where an individual is up against a well-resourced bureaucracy such as the MoD, for that person, having dealt with her own grief and change of circumstances, to appreciate that there might be a claim to be brought; to find someone to act for her; to make inquiries; to obtain documents; to seek the evidence of witnesses and experts; and then to evaluate the prospects of success and decide whether to bring a case and face the possible ordeal of going to court.

There is already a statute of limitation; no more is needed. My concern with Part 2 of the Bill is that the absolute six-year time limit will deny many—not all but certainly some—of our Mrs Smiths access to justice. Let us be clear: shutting the door of the court to our Mrs Smiths is a denial of justice to their sons and daughters who served this country. Who benefits from such a bar? Certainly not serving men and women or their families. This part of the Bill is plainly intended to protect the MoD against genuine and meritorious claims. I do not see how it is supportable, and I ask the Minister how she justifies people like Mrs Smith being barred from the doors of the court if their claim takes more than six years to formulate.

I say that especially given that the Government have announced that they will not proceed with plans to introduce a new combat compensation scheme for Armed Forces personnel and veterans, pursuant to the Better Combat Compensation consultation. Part 2 is neither necessary nor acceptable.