All 3 Lord Stewart of Dirleton debates involving the Ministry of Defence

Overseas Operations (Service Personnel and Veterans) Bill

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Lord Tunnicliffe Portrait Lord Tunnicliffe (Lab) [V]
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My Lords, in essence, Amendment 13 in the names of my noble and learned friend Lord Falconer, the noble and gallant Lords, Lord Stirrup and Lord Boyce, and the noble Lord, Lord Thomas, would reintroduce the normal approach to limitation: if a claim is not brought within 12 months —or three years if it is a personal injuries claim—under the Human Rights Act, the court can extend indefinitely if it is just and equitable to do so. This will allow personnel to bring claims after the Government’s proposed six-year longstop.

While the Minister argues that the longstop will apply only to a small number of personnel, I was struck by the comment from the noble and gallant Lord, Lord Stirrup—repeated again today—that

“to argue that only a small number of service personnel would suffer injustice does not seem a respectable position for a Government to take at any time”.—[Official Report, 9/3/21; col. 1594.]

We wholeheartedly agree with him. We have to correct this unfairness and avoid a breach of the Armed Forces covenant, as suggested by the Royal British Legion. While a soldier injured through negligence by a piece of equipment on Salisbury Plain can bring a claim under normal rules, it is wrong that different rules apply for the same act of negligence if it occurs in an overseas operation.

I also want to highlight a concerning Answer I have received to a Parliamentary Question. When asked about government investigations against civil claims, the Minister revealed that the MoD is launching three times more investigations against personnel who pursue civil claims than it did five years ago. These examine

“the true extent of a claimant’s alleged injuries”

and

“the veracity of a claim”.

This Answer, along with the six-year limit in this Bill, indicates that government is increasingly more suspicious of civil claims from troops against the MoD. We should not provide additional limitational hurdles in respect of military personnel bringing claims against the MoD. Therefore, the Bill clearly needs to be amended. When Amendment 13 is called, I intend to seek the opinion of the House.

Lord Stewart of Dirleton Portrait The Advocate-General for Scotland (Lord Stewart of Dirleton) (Con)
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My Lords, Amendments 7 and 8 seek to remove Clauses 8 and 9 from the Bill. Clause 8, in conjunction with Schedule 2, introduces new factors to which the courts must have particular regard when deciding whether to allow personal injury or death claims connected with overseas military operations to proceed after the primary time limit expires, and sets the maximum time limit for such claims at six years. The Government’s intent behind that is to help ensure that claims for compensation for personal injuries or deaths arising from overseas military operations are brought more promptly, and to help achieve a fair outcome for victims, for the service personnel and veterans who might be called upon to give evidence, and for the taxpayer.

Sections 11 and 12 of the Limitation Act 1980 set a three-year primary time limit for claims for personal injury or death, as do equivalent provisions in the other jurisdictions of the United Kingdom. This three-year time limit is not absolute, as the House heard from the noble Lord, Lord Thomas of Gresford, when introducing the debate. Section 33 of the 1980 Act gives the courts discretion to allow claims to proceed beyond that time limit if it is considered that it is equitable so to do.

When assessing whether it is fair to allow a claim beyond the initial three-year limitation period, courts must have regard to all the circumstances of the case and, in particular, to six factors which are set out in Section 33 of the 1980 Act. In broad terms, these relate to the steps taken by the claimant to bring the claim, the reasons for delay and the effect of the delay on the quality of the evidence.

The Government’s view is that these factors do not adequately recognise or reflect the uniquely challenging context of overseas military operations—a factor, I think, which is recognised more or less universally across your Lordships’ House. The Government are concerned that, unless the courts are directed to consider factors that are relevant to overseas operations, they may wrongly conclude that it is fair to allow older claims connected with overseas operations to proceed beyond the primary time limit.

Overseas Operations (Service Personnel and Veterans) Bill

Lord Stewart of Dirleton Excerpts
Thursday 11th March 2021

(1 year, 5 months ago)

Lords Chamber
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Lord Falconer of Thoroton Portrait Lord Falconer of Thoroton (Lab) [V]
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This has been a very significant debate, and one should not lose sight of the important changes that will take place in the ability of people to sue the MoD in respect of human rights claims, tort claims and contract claims arising out of overseas operations. The underlying problem, which the noble Lord, Lord Thomas, identified in his very clear and effective opening remarks, is that you do not want a situation where, when a court is considering whether to extend the limitation period beyond the primary limitation period, there is a bias in favour of the defendant, the Ministry of Defence.

What the noble Lord is saying, in effect, is that it should be approached in the way that these cases are approached in every other piece of civil litigation where there is an application to extend a period of limitation beyond the primary limitation period: the judge comes to a conclusion as to what he or she thinks—this is not quite the line in the statute—is just and equitable in all the circumstances. One of the really important things that one is looking at is the fact that the claimant will have a claim, and the claimant may be losing what would otherwise be a just claim because of the passage of time—and it may well be in particular that the passage of time beyond the primary limitation period could not properly be described as the fault of the claimant.

Over the years, the courts have become quite expert at exercising a discretion in relation to this, both under the Limitation Act 1980 and under the Human Rights Act 1998. My noble friend Lord Hendy, in his very helpful and compelling remarks about how the limitation period works, and the noble Lord, Lord Faulks, were basically in the same place. They were both saying that we should strike the balance in an even-handed way. I hope that it is not the case that there is going to be a bias in favour of the MoD, because, as the noble Lord, Lord Faulks, said, that is not desirable. My noble friend Lord Hendy said that there should not be bias. I completely agree with that. The purpose of this first group of amendments advanced by the noble Baroness, Lady Smith, and the noble Lord, Lord Thomas, is to make sure that there is not such a bias. I agree with my noble friend Lord Hendy and the noble Lord, Lord Faulks, that it has to be clear that there is not going to be a bias.

I believe, therefore, that amendments to the Bill are required. Whether or not the proposals of the noble Baroness, Lady Smith, and the noble Lord, Lord Thomas, are the best way to do it in group 1—there might be another way of doing it—the sentiment that underlies these amendments and the fact that they have been supported by both my noble friend Lord Hendy and the noble Lord, Lord Faulks, is significant. I very much hope that the noble and learned Lord, Lord Stewart of Dirleton, will have listened and may perhaps reassure us that he will come back with some amendments to make sure that there is not that undesirable bias.

Lord Stewart of Dirleton Portrait The Advocate-General for Scotland (Lord Stewart of Dirleton) (Con)
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My Lords, I have listened with care to the remarks advanced by noble Lords in relation to this proposed amendment. At the outset, may I note and associate myself with remarks made by noble Lords as to the tenor of the speech introducing this part of the debate by the noble Lord, Lord Thomas of Gresford. This seems to me, drawing on my short experience in your Lordships’ House, to be of a kind with contributions which we hear from that source, from the noble Lord, Lord Thomas of Gresford, concerned as it was that the principles which underpin the legal systems in the jurisdictions of our United Kingdom should apply universally, irrespective of whether claimants are British subjects or not—underpinned also by that confidence in the ability of our courts and our system to do justice among all forms and manners of people.

In considering this amendment, I note that we have already discussed first of all the three factors that this Bill is introducing which the courts must consider and to which they must have particular regard when deciding whether to allow claims connected with overseas operations to proceed after the primary limitation periods have expired. I will not rehearse the arguments that I have already made as to why we are introducing these new factors, though I will necessarily, in answering your Lordships’ points, touch upon them.

However, the additional factor that these amendments propose to add is not, I submit, necessary. That is not because it is not right for the courts to consider the importance of proceedings in securing the rights of the claimant—of course it is—but because this is already something that the courts will take into account when they consider whether it is equitable in all the circumstances to allow a claim to proceed. The court would inevitably be assessing the right of the claimant in determining whether or not an extension to the time limit should be granted. The additional factor in terms of the amendment proposed does not enhance the policy aim of the Bill, which is to help provide service personnel with greater certainty. It would however, I submit, increase legal complexity in a way that is unnecessary.

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Lord Stewart of Dirleton Portrait Lord Stewart of Dirleton (Con)
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These amendments relate to the date of knowledge provisions in Part 2 of the Bill. Before I address the substance of the amendments, I wish to issue a clarification regarding a statement I made in the previous sitting on Tuesday evening. I said that, while 94% of service personnel already bring their claims within the relevant time,

“it must be the case that many of the remaining 6% will come under the state of knowledge provisions”—[Official Report, 9/3/21; col. 1596.]

Your Lordships may recollect that that issue came up in the course of submissions by the noble and gallant Lord, Lord Stirrup. In fact, we assessed that the 94% figure relates to claims brought by service personnel and veterans within six years of either the date of incident or the date of knowledge. We will endeavour to educate service personnel and veterans about these new provisions to ensure that more, if not all, claims are made within the new time limits in future.

I now move to the amendments in this group, which would increase the time period which runs from the date of knowledge for Human Rights Act claims from 12 months to six years. They would also change how limitation time periods are calculated by allowing claims to run only from the date of knowledge and not also from the date of the act or incident.

The date of knowledge provisions in Part 2 are an important aspect of the Bill. Because we are introducing hard time limits for certain claims, it is right that the longstop period can start from the date of knowledge. Of course, the Limitation Act 1980 already includes a date of knowledge provision which works, and we should not be amending that in this instance. However, the Human Rights Act does not have such a provision. We are therefore seeking to mitigate any unfairness that might arise from the imposition of a hard time limit by allowing claims to be brought late if the date of knowledge is later than the date of the incident.

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Lord Falconer of Thoroton Portrait Lord Falconer of Thoroton (Lab) [V]
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In effect, these amendments once again reintroduce the normal approach to limitation, which is that if you do not bring your claim within 12 months under the Human Rights Act or, if it is a personal injuries claim, within three years—based on tort or a breach of an implied contract—then the court can extend indefinitely, in effect, if it is just and equitable to do so. The courts have applied sensible approaches to those issues, and the longer you are away from the primary limitation period expiring, the better the reason you must have for extending the time.

The noble Lord, Lord Thomas of Gresford, made a very powerful point, asking why there should be special rules for the Ministry of Defence in relation to overseas operations. The answer that the Ministry of Defence gives is that military personnel involved in overseas operations should know—indirectly, because they will not normally be sued personally—that no litigation will arise from their conduct after a specified period, which is six years or one year from the date of knowledge, whichever is later.

That approach does not seem to me or veterans’ organisations to be legitimate in relation to claims being brought by soldiers or veterans in respect of negligence or breaches of human rights by the Ministry of Defence. Military veterans or existing soldiers should be subject to the same rules in relation to limitation as apply in any other claims. There is no evidence that the reassurance that individual members of the military are looking for—in relation to ongoing litigation out of overseas operations—is coming from fear of claims being brought by veterans against the Ministry of Defence for personal injuries caused normally by negligence on its part.

As such, in so far as the new rule about limitation in respect of overseas operations applies to prevent claims being brought by veterans or existing soldiers, I am against it. The proposal made by the noble Lord, Lord Thomas of Gresford, which, in effect, applies the normal rules, should be applied to veterans and existing soldiers who want to bring claims arising out of negligence or breaches of human rights in an overseas operation, just as much as if they bring a claim with the normal rules applying if the injury had occurred to them in the UK. The soldier injured by the provision of a negligent piece of equipment—body armour or a vehicle—can bring a claim with the normal rules applying if it happened on Salisbury Plain, but he or she cannot if the same act of negligence had occurred in an overseas operation. That is profoundly wrong.

Lord Stewart of Dirleton Portrait Lord Stewart of Dirleton (Con)
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My Lords, the limitation longstops provide service personnel with a greater level of certainty that they will not be called on to give evidence in court many years after an event. The uncertainty that the Bill proposes to address can have a significant effect on service personnel and veterans. It prevents them from drawing a line under certain traumatic experiences, always knowing that there is a possibility that the events of the past may be dug up again. This is why it is important to have finality and why the limitation longstops need to have a clear end.

In moving the amendment, the noble Lord, Lord Thomas of Gresford, asks for the policy that underlies this measure; that is the policy. For the reasons that I have discussed, it is important that limitation longstops have a clear end, one that cannot be overcome. Were it to be overcome by the existence of some residual discretion, such as the noble Baroness, Lady Chakrabarti, would seek to have imposed, that would negate the benefits to service personnel of greater certainty that they will not be called on to give evidence many years after the event. Let us remember that, in claims such as can be anticipated, it will most likely not be Ministers standing in the witness box and accounting for decisions taken; it is likely to be the very comrades of service personnel themselves.

Six years provides enough time to bring a claim: to echo the words of the noble Lord, Lord Faulks, it is a fairly lengthy period. The vast majority of service personnel and veterans already bring relevant claims within six years of the date either of the incident or of knowledge. As I say, giving discretion to the courts to allow claims after the expiry of the longstops will negate the benefits, and we want to provide service personnel and veterans with those benefits which flow from greater certainty.

The noble Lords, Lord Thomas of Gresford and Lord Faulks, adverted to a contrast with the situation that may arise in relation to Northern Ireland. That is indeed a special context, and, echoing the words of the noble Lord, Lord Faulks, this is a matter to be dealt with in separate legislation.

The longstops apply to all Human Rights Act and death and personal injury claims connected with overseas operations. We believe that six years is a sufficient period to commence proceedings, regardless of who is bringing the claim. Where claims cannot be brought within the relevant timeframe because the claimant was not aware that their injuries were caused by the actions of UK Armed Forces, the date-of-knowledge provisions help to mitigate any unfairness that might otherwise be caused.

Overseas Operations (Service Personnel and Veterans) Bill

Lord Stewart of Dirleton Excerpts
Lord Thomas of Gresford Portrait Lord Thomas of Gresford (LD) [V]
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My Lords, like my noble friend Lady Smith and others, I am concerned that there should not be a different principle of limitation for service personnel for injuries received as the result of overseas operations as opposed to those injured while they are serving in the United Kingdom. However, I want to also speak up for the civilians in the country where the overseas operations took place.

I am not naive about this. I very much recall a court martial in Colchester, in 2005, for which a lady was brought from Iraq with a complaint that a British soldier had stripped her naked in the street and had caused her huge embarrassment. She went into the witness box, took the oath on the Koran and then turned to the judge and said, “Now I have taken the oath on the Koran, I have to tell the truth. I made it all up.” There were many complaints that were made up at that time.

At the time of the Baha Mousa trial, Mr Phil Shiner was wandering around trying to infiltrate our discussions, and he always had someone taking a note of the evidence as it emerged, which he subsequently misapplied. I am very glad that he was struck off by the Law Society.

That, however, should not prevent, in an appropriate case, a claim for damages going forward if it is equitable to do so. The noble Lord, Lord Faulks, expressed with considerable authority the complexity of this area of law and the difficulties that exist in any event—never mind in overseas operations.

There are valid claims. I put in a Written Question on 2 June last year. The Answer told me that, since 2003, there have been

“1,330 claims for damages relating to alleged misconduct … The claims … focus predominately on alleged unlawful detention but many incorporate allegations of mistreatment”.

The Ministry of Defence has paid out £32 million in respect of these allegations, and says that it does not pay out without consideration and finding the claim valid. It meets the bill, which does not fall on the soldier in question.

The practice of the court is not to extend to extend limitation periods easily, and that is a particular concern where valid claims are coming forward. When the court considers whether to extend the limitation period, it investigates all the circumstances. It is very difficult for a poor person in a foreign country to bring a case, and as the noble Lord, Lord Faulks, pointed out, it is not easy to extend the limitation period. Date of knowledge is frequently an issue. Sometimes it almost seems as if when a court hears an application for an extended limitation period it will be granted on the nod. But that is not the case: it is a difficult thing to argue. I am, therefore, in favour of these amendments, and I look forward to seeing how they appear on Report.

Lord Stewart of Dirleton Portrait The Advocate-General for Scotland (Lord Stewart of Dirleton) (Con)
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My Lords, I begin by addressing Amendment 29, which seeks to carve out claims from service personnel and veterans from the limitation longstops in the Bill. I have to be clear from the outset: such a carve-out would amount to an unjustifiable difference in treatment between different categories of claimants and would therefore be likely to be incompatible with the United Kingdom’s obligations under the European Convention on Human Rights.

A carve-out would also have very limited practical impact. The noble and gallant Lord, Lord Stirrup, anticipated the statistic that I am about to quote. Analysis of previous claims has indicated that the vast majority of claims—around 94% of relevant claims brought by service personnel or veterans in connection with overseas operations—have been brought within six years, which is the period of the longstop.

In answer to the noble and gallant Lord, it must be the case that many of the remaining 6% will come under the state of knowledge provisions, whereby the period of limitation will commence at the point at which the individual has become aware of their condition. The noble Baroness, Lady Smith of Newnham, adverted to this in her submission when she spoke about hearing loss, a condition that might well become manifest outwith the period of six years from the point at which it had been incurred or commenced. The same might equally be said for post-traumatic stress disorder.

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Baroness Smith of Newnham Portrait Baroness Smith of Newnham (LD) [V]
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My Lords, not being a lawyer, I shall take the approach taken by the lawyers and be very brief in my comments. I have the same question as the noble and learned Lord, Lord Falconer: what is the purpose of “particular regard” in this respect? There is a time limitation already. Is the “particular regard” intended to truncate the ability to bring proceedings even further, so that if there is a suggestion that somebody’s memory has been impeded by overseas action, it makes it even less likely that proceedings can be brought?

Lord Stewart of Dirleton Portrait Lord Stewart of Dirleton (Con)
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My Lords, I am again grateful to those noble Lords who have contributed to this short debate. The Bill introduces three factors that the courts must consider and pay particular regard to when deciding whether to allow Human Rights Act claims connected with overseas operations to proceed after the one-year primary limitation period has expired. We feel that these factors are an important part of the Bill, because they ensure that the unique operational context in which the relevant events occurred is taken into account by the courts when considering limitation arguments in claims connected with overseas operations.

As the noble and learned Lord, Lord Falconer of Thoroton, pointed out very early in his submission, the courts will do this already; the courts will have regard to these things. Part of their consideration of whether to allow a claim to proceed beyond the primary limitation period includes assessing whether the claim is, in the language of statute,

“equitable having regard to all the circumstances”.

But our position is that putting these three factors on the face of the Bill will provide a guarantee for service personnel and veterans that appropriate consideration will always be given by the courts—whether that is for Human Rights Act claims or for personal injury and death claims—to these significant points, which are different from those which would apply in peacetime.

We believe that in situations where claims are connected with overseas operations, the courts should pay particular regard to the reality of these operations: the fact that opportunities to make detailed records at the time may have been limited; that increased reliance may have to be placed on the memories of the service personnel involved; and that, as some personnel may suffer from mental ill-health as a result of their service, there is a human cost to them in so contributing.

This is what the additional factors that the Bill introduces seek to do. They consider the extent to which an assessment of the claim will depend on the memories of service personnel and veterans; the impact of the operational context on their ability to recall the specific incident; and the likely impact of the proceedings on their mental health. We believe that it is right that the operational context is at the forefront of the mind of the court when considering whether to allow claims beyond the primary limitation period. Noble Lords will know that we are also introducing these factors for personal injury and death claims, and we must ensure that Human Rights Act claims connected with overseas operations are treated in the same manner.

Particular emphasis was placed on the word “particular” in the course of this short debate. I undertake, in light of the submissions made in the time available, to consider the terms of the drafting and to weigh the suggestions made by noble Lords in relation to that particular adjective in the context of the provision. I will look at any connotations that might flow from it and might be adverse to the intention of the Bill. At this stage, however, I urge that the amendment be withdrawn.