Overseas Operations (Service Personnel And Veterans) Bill

Carol Monaghan Excerpts

2nd reading & 2nd reading: House of Commons
Wednesday 23rd September 2020 Commons Chamber

[The Minister for Defence People and Veterans (Johnny Mercer)]

This is embarrassing.

[Carol Monaghan (Glasgow North West) (SNP)]

You are embarrassing.

[Madam Deputy Speaker]

Order. When you speak, you speak standing up not sitting down. Now, we will just have a drop in temperature while we consider the facts of the Bill and let the emotions settle down somewhat.

--- Later in debate ---

[Carol Monaghan (Glasgow North West) (SNP)]

It is a pleasure, as always, to follow the hon. and gallant Member for Beckenham (Bob Stewart), whose hair is looking glorious this afternoon as well. I declare an interest because, as most Members will know, my husband is a veteran. [Interruption.] He is also an Ulsterman: I thank the hon. Member for Strangford (Jim Shannon) for pointing that out.

I must pick the hon. and gallant Member for Beckenham up on one thing. It is not true to say that all members of the armed forces want this Bill, as that is not the case. None of us wants a repeat of the shameful Phil Shiner episode, and no person in this House would disagree that we need protections in place for our personnel and veterans. Unfortunately, however, the Bill is not the vehicle to do that. Our armed forces are the gold standard for militaries around the world and that must include the structures we have in place to deal with behaviour that falls short of our expectations.

Like the right hon. Member for North Durham (Mr Jones), I have submitted a series of written questions to try to get a feel for the scale of this problem. I was hoping for a bit of information, but I have yet to have any answers to these questions. The Minister has not been in touch. Despite what the Secretary of State said— it is a pity he has gone now—about the Library impact assessment having all those numbers in it, it does not. It has numbers relating to part 2 of the Bill, not part 1. It is worrying that we are bringing forward legislation to tackle the industrial scale of vexatious claims, but we cannot get a handle on how many there actually are.

As we know, many conflicts involving our personnel are in parts of the world that are now experiencing a fragile peace. To put in place a statute of limitations on prosecutions assumes that normality and the structures of a democratic society will be promptly established post conflict. This, of course, is not the case. If we are to rely on investigations that have taken place, we must have confidence in those original investigations.

[Tom Tugendhat]

I appreciate the hon. Lady’s point about the confusion of post-conflict societies and therefore about the statute of limitations, but would she not accept that this goes both ways? There is also the difficulty people can have in defending themselves when evidence has been lost, burned or destroyed in exactly those post-conflict societies, and therefore time works both ways on this question. This is essential for the defence in justice, because justice must not only be for the prosecution, but for the defence.

[Carol Monaghan]

There are two things: that is not unique to conflict—that happens in many things—and that is also why the original investigation must be carried out properly. If we want to minimise the opportunities for these vexatious claims, such investigations should be independent. They should be collecting accurate evidence, and without this we really do leave the door open.

If the conduct of our personnel is as we expect, why should anyone fear this transparency? This legislation undermines our international standard the more so because it includes, as Members have already mentioned, unlawful killing and torture. Judge Blackett, the Judge Advocate General of the armed forces, has warned:

“This increases the likelihood of UK service personnel appearing before the ICC in the future.”

Is this what any of us want?

Part 2 of the Bill has not had much mention this afternoon, and it should. It is ironic, when we have the Tory chest-thumping going on about protecting our brave soldiers, that part 2 is actually an attack on these very personnel. It removes many of the rights of those who have been injured through the negligence of the MOD to claim against it. Here is the nub of this Bill: it is about protecting the MOD, not personnel.

In the urgent question on 16 July, the Minister for Defence People and Veterans said:

“I will be honest that I cannot, off the top of my head, think why individuals would be diagnosed and choose not to do anything about it… I have not come across that in all my experience in the field, but I am happy to learn. If that is the case, I am happy to change the Bill”.—[Official Report, 16 July 2020; Vol. 678, c. 1675.]

Well, that is great, because it needs changing. There are many reasons why claims are not brought forward promptly, such as a culture in the military meaning that personnel may be told they cannot pursue a claim while serving or told by their chain of command they do not have a valid claim. If part 2 of the Bill becomes law, those injured through negligence will no longer have the full discretion of the court to allow a claim to proceed after the limitation period has expired.

[Sir John Hayes (South Holland and The Deepings) (Con)]

Will the hon. Lady give way?

[Carol Monaghan]

No, I am short of time.

Instead, those who have served overseas, potentially risking their lives, will have an absolute six-year time limit. Given that people can live with conditions such as deafness, asbestos poisoning and the impact of radiation exposure, with the severity increasing over years, how many personnel would pursue a claim within that time limit? The Government say this Bill will be beneficial to personnel and veterans, so perhaps the Minister can give us some real examples of how.

Personal injury claims are important not only in securing justice, but in holding the MOD to account. The unsuitability of Snatch Land Rovers would never have come to light if it had not been for bereaved families pursuing claims against the MOD. The Bill is contrary to the armed forces covenant, which is a promise by the nation to ensure that those who have served in the armed forces, and their families, are treated fairly. The removal of human rights protection is not treating armed forces personnel fairly.

Overseas Operations (Service Personnel and Veterans) Bill (First sitting)

Carol Monaghan Excerpts

Committee stage & Committee Debate: 1st sitting: House of Commons
Tuesday 6th October 2020 Public Bill Committees

[The Chair]

We are tight for time, so I will call Carol Monaghan next, and then, if we can, we will squeeze in Liz Twist and Stuart Anderson, who have both indicated a wish to speak. Gentlemen, could you, at the other end, give short, sharp answers as well?

[Carol Monaghan (Glasgow North West) (SNP)]

Q Thank you, Mr Mundell. Could I take Mr Young back to something he said earlier? One reason given for the Bill being brought forward is the industrial scale of claims against the MOD. You said that you reckoned there might be exaggerations about that. How big an exaggeration do you think it is?

Douglas Young: I cannot quantify it, but I certainly have seen a suggestion that a large proportion of actual claims has been on behalf of forces personnel—[Inaudible.] Only the MOD can really answer that. I have mentioned before my concern about some of the language. Lawfare actually exists and it is a threat, but many of the cases are not lawfare at all in the sense of being employed by bad or malicious actors in order to make things difficult for the United Kingdom. Many of the cases are not like that at all. If people feel that they have a claim, they will make a claim. It is exactly the same in this country. Why wouldn’t you, if you were in Basra or Helmand and you thought you had a genuine claim? People exaggerate. I have absolutely had experience of that in the Balkans. People tell stories and it is difficult to get to the truth.

[Carol Monaghan]

Q Do you think the phrase “industrial scale” has been misused?

Douglas Young: “Industrial scale” refers to large numbers. The numbers mentioned by the MOD are high. I would like to see the breakdown and how many were settled, in which case presumably there was something in it, and how many were not by indigenous residents but by members of our armed forces.

[Carol Monaghan]

Q Part 2 of the Bill proposes a six-year limit for civil claims against the MOD. Typically that would be personnel who have suffered injury as a result of MOD neglect or negligence. Why do you think a six-year limit has been put forward?

Douglas Young: I think six years is a reasonable presumptive time limit, but the absolute limit, the longstop, should be longer than that.

[Carol Monaghan]

Q Without an absolute longstop limit, do you foresee difficulties, or have you had any experience where people have had injuries that have only come to light, or where they have only claimed, much later than that six years?

Douglas Young: On the first point about coming to light, we are all right with that. The time limit only starts at that point. I do not have any experience of facts that came to light.

[Carol Monaghan]

Q Could I put the same question to Mr Sutcliff? Can you see any difficulty? You talked about your experience in the Royal Navy. Can you see any difficulty whereby a situation might arise and an individual might want to claim beyond the six-year limit?

Michael Sutcliff: The example I gave you is exactly that. I can see it for everyday injury, but when you are using equipment, machinery and things like that—this problem with asbestos literally only started raising its head many years ago. To be fair, the MOD dealt with that very fairly. There are always exceptions to the rule. You should be able to make a submission as something that arrives and is seen by the necessary medical people or scientists as an issue. I am not sure that that answers your question, but you cannot just shut things down like that, or else we would have been in trouble.

[Carol Monaghan]

Q I suppose the reason for my question is that different organisations have concerns that some conditions come to light and the individual has left a period of time before actually pursuing a claim, so although it has come to light on a particular date, the limit would prevent them from pursuing the claim. There are issues like, for example, radiation poisoning or hearing loss.

[The Chair]

Gentlemen, this will be the last question, so if you could both answer succinctly, that would be helpful.

Douglas Young: One thing about a shorter period is that, properly described by the MOD and by lawyers and others, a shorter time, if properly used, would actually remind people that the clock is ticking and that they need to get in. So there is that case for shortening that limit, but we should be careful.

Michael Sutcliff: I accept that. That is a reasonable comment.

[Carol Monaghan]

Thank you, gentlemen.

[The Chair]

Thank you to the witnesses. We have reached the end of the time. I apologise to the two Members who wished to put questions but were unable to do so. Thank you, gentlemen, for joining us and engaging with the technology successfully.

Examination of witness

Hilary Meredith gave evidence.

--- Later in debate ---

[Stuart Anderson]

Q Thank you, Chair—it is an honour to serve on the Committee. Ms Meredith, you have mentioned what you think is wrong in the Bill. Obviously, we are looking to protect serving personnel and veterans in the future. If you do not think the Bill is right, what do you suggest we do?

Hilary Meredith: I think the overarching view of the Bill is correct, but there does need to be protection in place. When criminal prosecutions arise out of civil compensation cheques being dangled, there should be a presumption of innocence and no prosecution should really take place without extra care and caution.

I think that the time limit is a bit of a red herring, to be honest. We do not need time limits on it; most of the allegations were brought in a timely manner. I have searched to see whether our courts ever exercise their power of discretion under the Limitation Act for human rights allegations—they have to be brought within 12 months. I cannot find a single case on a preliminary investigation in which the courts have extended a 12-month time limit under the Human Rights Act. I can see one case where they have extended the date that time begins to run, and in multiple proceedings, that is not at the beginning of the process but at the end.

For example, under IHAT, it was only in June this year that we found out that of those 4,000 vexatious criminal claims, there was not a single prosecution. In those circumstance, if a member of the Armed Forces wishes to bring their own human rights claim for lack of a speedy trial, that time runs from June this year.

[Carol Monaghan]

Q Thank you for your evidence so far. In response to Emma Lewell-Buck’s questioning, you talked about the need for proper investigation. Can you expand on that and tell me what you see that as being?

Hilary Meredith: The investigations that took place following the civil claims were shambolic to be honest. I know that you will hear from Robert Campbell after me; he would have liked to have been heard in the European courts, because our system was so shambolic and went on forever. That is a very extreme viewpoint to take—we cannot investigate properly in this country.

The Royal Military Police need special training. You have to understand that they are investigating crimes overseas and in a war zone. It is extremely difficult. It may be that they take training from, for example, the Metropolitan police on investigating crimes. It is a very difficult area to investigate. We need to have a robust system of procedures to investigate crimes, rather than putting time limits on it.

[Carol Monaghan]

Q Thank you. When we hear about repeat investigations, what sort of form do they take?

Hilary Meredith: For example, if I can use the case of Major Campbell, the investigation against him included a drowning in the river in Iraq. That allegation came within a year of the incident. He was told by his commanding officer not to worry about it because it would be cleared—it would be sorted. Then began a process where over 17 years, he was investigated 11 times for the same incident. That is the shambolic system of procedure that we are operating in this country and that is what needs to be reviewed and overhauled.

[Carol Monaghan]

Q And who was carrying out these repeated investigations?

Hilary Meredith: I think the original investigation was by the Royal Military Police. It was perceived that they were not independent enough, so the IHAT team was formed. Under the IHAT team, we then had this terrible form of investigation through Red Snapper, which Parliament has heard about before. Its methods of investigation and what it put those accused through was quite horrific. Had there been an independent advocate that had the backs of the individual members of the armed forces—not the Ministry of Defence, which cannot act; there is a conflict—there would have been a buffer between the Red Snapper team and the IHAT team and the individual person. I think that would have solved a lot of mental health issues as well.

[Carol Monaghan]

Q You mentioned that you are concerned about the six-year longstop in part 2 of the Bill. Can you give an example of where that would be problematic?

Hilary Meredith: There is a difficulty putting a time limit on the Human Rights Act—I do not even know whether we can do that constitutionally, because it is a European convention. If there is a six-year time limit on criminal allegations, I have concerns about that. I think most of those criminal allegations were brought well within time anyway; as I said, it is the process that was wrong.

For civil claims against the Ministry when people are injured or killed in service overseas, I do not think a longstop should be applied. There are tremendous difficulties in placing people in a worse position than civilians. In latent disease cases—diseases that do not come to light until much further down the line, such as asbestosis, PTSD, hearing loss—it is not just about the diagnosis. Many people are diagnosed at death. It is about the connection to service. That connection to service may come much later down the line, and by that time they will be out of time to bring a claim.

[Carol Monaghan]

Thank you very much. Thanks for your answers.

[Mr Kevan Jones (North Durham) (Lab)]

Q One of the things that has come out from what you have said, and certainly what I have read throughout all of this, is the issue around poor investigations and the investigation industry, as it became, in Major Campbell’s case. You have already said that there should be an advocate on behalf of somebody who is accused. If we could put that into the Bill, would you welcome it? Secondly, is there any way we could put time limits or controls on the length of investigations?

Hilary Meredith: That is a really interesting point, actually. I had not thought of a time limit on investigations. Certainly under the Human Rights Act, there is a right to have a speedy trial, and that did not happen in these cases. There were no speedy trials. A limit on the time that an investigation takes would, I think, be really welcomed. Sorry, I cannot remember your second question.

--- Later in debate ---

[Sarah Atherton]

Q Hello, Major. I would like to thank you for your services, and I am horrified at what you have been through. Some critics say the Bill will increase the number of prosecutions and allegations taken to the international criminal courts. Given your experiences and knowledge of the Bill, what is your opinion on that?

Major Campbell: I think that is a false allegation, and I will tell you why. Again, when I wrote to all these people—even internally within the Army—I was told repeatedly that if IHAT was interfered with in any way, the International Criminal Court would swoop in and clamp us in leg irons, and we would all be off to The Hague. Michael Fallon repeated in the Defence Sub-Committee that he had no power to stop such investigations and that, if he were to do so, the ICC would get involved.

I decided to test that theory, and I wrote to the chief prosecutor of the ICC, Ms Bensouda, asking in exasperation whether I, SO71 and SO72 could surrender ourselves to the ICC rather than go through several more appalling years at the hands of the Ministry of Defence. Ms Bensouda responded that our allegation does not fall within her remit, because her job is not to prosecute individual soldiers; her job is to prosecute commanders and policy makers for the most grave crimes. In her orbit, manslaughter, which is what I was accused of, is not a war crime. It is a domestic crime—a regular crime, as opposed to what she would normally deal with. I reported that rejection to the Ministry of Defence, which continued to repeat that the ICC would fall in.

The second point I would make is, what would be so terrible about the ICC being involved? We kept getting told that the ICC has a bit of scrutiny over IHAT and is keeping a very close eye on it. Personally, I do not have a problem with that. Like I said, the ICC was not going to ruin our careers, the ICC was not going to harass our families, and the ICC was not going to go and bully soldiers who had left the Army for a witness statement—not even a suspect’s. The ICC would conduct itself professionally, and it would have no incentive—no financial incentive—to drag things out for years, like Red Snapper, which provided most of the detectives to IHAT, did. Finally, the ICC would probably not use the investigative technique that IHAT used, which was to pay Phil Shiner’s gofer to be the go-between between them and witnesses because IHAT was too scared to go to Iraq.

So regarding the whole spectre of the ICC, first, I do not find it remotely as scary as people make it out to be and, secondly, it is completely false, because I attempted, with my two soldiers, to surrender ourselves in order to spare us another several years of the MOD fannying about, and the offer was refused. So to answer your question, I do not see that as an issue at all.

What I would say, though, is that I think I understand why the Government would be reluctant for the ICC to be involved, because the scrutiny would not be on Tommy Atkins; the scrutiny would be on General Atkins and Minister Atkins. Those are my thoughts on the ICC.

[Carol Monaghan]

Q Major Campbell, thank you so much for the evidence that you have given us already today. I think that all of us here are sorry to hear of your experience, and I think that the sympathy of all of us is with you.

Clearly, a lot of this is still very raw for you, and you have talked about the MOD dragging it out over the last 17 years. Can you tell me how you think this Bill will actually tackle the MOD’s actions and inactions, which you have been subjected to over the last 17 years?

Major Campbell: Like I said in the previous response, if there was a time limit within which these things can be actioned, then I feel that a higher level of scrutiny and decision making would be necessary to make them work. I also think that the kind of dithering manner in which this process has been carried out to date would be nullified. If there is a time limit within which they have to get on with it, get it done right the first time and get the correct legal advice, I think that would improve matters no end.

[Carol Monaghan]

Q How would you see a proper investigation being carried out?

Major Campbell: That is a good question, because I do not know. The reason I say that is that I do not believe that there is a police force in the United Kingdom that would be able to carry out such a contested, political and adversarial investigation. If you think about the way that it has been done in the past, when IHAT got this group of ex-detectives who were used to domestic crime, and they are asked to investigate an allegation in a country they have never been to, in a culture they do not understand, in a combat environment they have never experienced and in a language they do not speak, I just think that you are already on a hiding to nothing if those are your parameters.

I do not know how a war crimes investigation can be done effectively while hostilities are ongoing. For example, if there was an allegation against our forces in Syria, I really do not understand how you are supposed to be able to gather good evidence in an area that may be occupied by the regime, Russia or ISIS, and I do not understand how you would achieve the right level of evidence. But what I do know is that the way they did it in the past was an absolute shambles.

[Carol Monaghan]

Q Given that it would be difficult—I know that we are very short of time, Chair—to gather evidence when there is still an ongoing conflict, is five years a realistic point?

Overseas Operations (Service Personnel and Veterans) Bill (Second sitting)

Carol Monaghan Excerpts

Committee stage & Committee Debate: 2nd sitting: House of Commons
Tuesday 6th October 2020 Public Bill Committees

[Mr Jones]

Q Would it extend to, for example, mental health grounds? The original 2000 Act was quite limited in terms of date of knowledge and other things around mental health. The Lord Boyce review was implemented in 2009. So what you are saying is that the presumption that there be no fault, basically, is accepted. That would perhaps get round the time limitations altogether.

Dr Morgan: It also gets away from what we see in Smith v. Ministry of Defence: the allegation that the Land Rovers were not the right ones. Once you go to court investigating that in a negligence claim, it is getting into areas that should not be dealt with by a court in a negligence claim, it seems to me. If you are going to stop people from bringing such claims, you had better give them at least as good a compensation scheme without them needing to prove fault. That was our argument in the paper five years ago.

[Carol Monaghan (Glasgow North West) (SNP)]

Q This morning we heard from Major Bob Campbell who talked about the MOD—in a brilliant quote to get on the record—“fannying about with repeated investigations”. He talked about 17 years of this carry-on. What part of the Bill do you see addressing the MOD’s failures in terms of these repeated investigations?

Dr Morgan: I was going to comment on Major Campbell; I read about him in the newspaper on Saturday. It seems to me that his case would not have been addressed by these proposals. He was prosecuted in 2006 about an alleged offence in 2003, so that would have been within the five-year period for bringing the prosecution. It is only in 2020, after 17 years, that he has finally been cleared. The point was made in the Second Reading debate by a number of Members that perhaps the real vice is not so much very late prosecutions but the continued investigations by the Ministry of Defence without necessarily leading to a criminal prosecution at all. If I have understood the facts of Major Campbell’s case, it rather shows how a five-year soft cut-off for prosecutions is not going to solve that kind of problem at all.

[Carol Monaghan]

Q Would you support calls for some sort of independence in the investigative processes?

Dr Morgan: There is a rule in criminal law that if you have been tried in a criminal court for an offence and you are either acquitted or convicted, you cannot be tried again. That is double jeopardy. What I do not understand is why the double jeopardy rule is not applying, by analogy, to these repeated investigations within the Ministry of Defence. That needs to be urgently addressed, and it is not within the Bill. Maybe the Bill cannot do everything, but the Campbell case shows that there is a gap.

[Carol Monaghan]

Q Would it make sense for that type of legislation on the way investigations are carried out to be developed alongside the Bill?

Dr Morgan: Yes. Whether this needs fresh legislation or whether it can simply be done by changing the rules, I do not know. I know what Professor Ekins will say, which is that because the Human Rights Act requires investigations into deaths, we are currently limited in what we can do. Perhaps he will comment on that.

Professor Ekins: I am sure the Ministry of Defence has had many failings across the years, but in one sense it needs to keep investigations going and to be open and avoid plodding along. It has done a lot under the threat of litigation—sorry, the reality of litigation—where it is exposed to a duty to investigate in accordance with changing standards over time. Something similar has happened in Northern Ireland, which John Larkin knows much more about than I do. It has been a particular feature of the legacy and the legal cases around Afghanistan. Those conflicts were fought on a pretty sound legal position and on the understanding that the European convention did not apply. The ordinary rules of the law around conflict and service law applied, yet subsequent decisions about investigation or not investigating have been challenged in the domestic courts by way of the Human Rights Act. I cannot see how we deal with that prospect recurring over time without addressing the territorial reach of the Human Rights Act.

The Bill deals with the issue incidentally and in part in so far as derogation, if there is derogation, in advance of future conflicts might help, and in so far as there are time limits on Human Rights Act applications or proceedings. That might deal with some of the risk of historical allegations being made and investigations rolling on. In terms of the problem of people being investigated repeatedly and a prosecution never being mounted, that is not a problem the Bill deals with directly, although I think it probably is the main mischief.

John Larkin: I agree with Professor Ekins that the Bill is somewhat silent on the duration and repetition of investigations. In some cases, that leads to real mischief. It is not much fun for anyone to be finally vindicated after 10 or 12 years have elapsed. They would much rather be vindicated promptly—this applies both in terms of ordinary criminal civil justice as well as in the issue of service personnel—after a thorough and expeditious investigation.

[Carol Monaghan]

Q Finally, having heard what the three of you have said about how we carry out investigations, do you understand that some people would have concerns that the Bill will not solve the issues of people like Major Campbell and the difficulties that he has had over the past 17 years?

Dr Morgan: It is the point I made, so I agree that it will not solve all of the problems as it stands.

Professor Ekins: Yes, it is a real concern.

John Larkin: I think it is wrong to see a so-called independent investigation as the answer. The issue is not the independence or otherwise of the investigation. In fact, investigations are substantially independent at present. The issue is efficiency and the fairness of what is investigated.

[Joy Morrissey (Beaconsfield) (Con)]

Q I have two questions on the point raised earlier about the territorial reach of the Human Rights Act. How would you limit that within the Bill? What would you suggest?

--- Later in debate ---

[Stuart Anderson]

Q We are where we are now, and we need to protect troops moving forward. They will be serving in our overseas operations this year, next year and so on. We can keep saying it does not protect veterans from Northern Ireland. I served in Northern Ireland, and I know many hundreds of veterans who have served in such environments, and there is separate legislation for that. We need to put that to one side with this, but we need to do something moving forward.

You say these things amplify the fear. The veteran community is very small, so we all know someone who is expecting a knock on the door. That is really amplified, because there is a brotherhood and sisterhood that has gone through the forces. When one person is affected, everybody is affected. Nothing has been brought in so far, and now we are at the start point. A major fear I have is that I keep hearing people saying stop. It has taken decades to get here. I do not know how long I will be a politician, but if I have a long career, we could still be saying stop, because people will never find a perfect Bill.

I hear what you are saying, but I think it goes against what the veteran community wants and is crying out for. As you have heard today, and with the greatest respect—I value what you are saying—every person we are seeing has a different view on this. As politicians, we need to find the best way to get the Bill through. If the Bill were to be stopped, I know the absolute lack of trust and heartbreak that the veteran community would feel. We have to use what we have and move that forward. I respect what you have said, but I felt that it was important to express how the heart of the veteran community is feeling about this.

Emma Norton: I do understand that. You say that every person that has appeared before you has a different view; in fact, it has been a running thread throughout all of this. Everybody seems to agree that the problem is the lack of independence in those early investigations, and we still have a lot of questions, and need to have discussions, about how to improve that. If we addressed that, it would be a much safer basis to proceed and face the future. It would also be litigation-proof for the MOD; if you have investigations that are solid, independent and secure, they would be litigation-proof. That would be good for the victims, and it would be excellent for the soldiers.

[Carol Monaghan]

Q May I ask, following those last questions, whether part 2 has been brought in stealthily off the back of part 1?

Ahmed Al-Nahhas: Yes, I believe so. What you are giving veterans with one hand, you are taking away with the other. That is a confused approach to legislation, and I am very concerned about it. Does that answer your question?

[Carol Monaghan]

Q Yes, thank you. Emma Norton, do you have any comments?

Emma Norton: I do not have much to add to that, except to say that I agree and that it is quite extraordinary that part 2 will only benefit the Ministry of Defence, and the Ministry of Defence is the defendant in all those claims. That is quite extraordinary.

[Carol Monaghan]

Q Is there a danger that the hard stop of six years could prevent things such as inefficiencies in equipment from coming to light?

Ahmed Al-Nahhas: There is definitely a risk with any hard stop. APIL’s main concern is that taking away the flexibility of section 33 is a real danger. You are touching on accountability here; I heard your question to the previous academics about that, and it is important.

May I share an example from a case of mine? It was the wife of a serviceperson who died in Iraq in 2005. At the time he died—he died in a Snatch Land Rover due to an improvised explosive device—she had no idea whatsoever that the Ministry of Defence was culpable in any way. It was not until more than a decade later, when the Chilcot report came out, that fingers started to be pointed towards the Ministry of Defence. That report stated that the provision of Snatch Land Rovers was woeful and put service personnel’s lives at risk.

The wife later sought to bring a civil claim for her and her children. At that stage, 10 years after the death, her claim was already technically out of time. We had further delays because she was dealing with cancer and going through treatment. That sounds like quite an exceptional case, but we have had similar situations—I brought a claim that technically was out of time, and if this Bill had been in place, that claim could not have proceeded. The claim was settled for several hundred thousand pounds, and brought her some justice and some compensation.

I mention that example for two reasons. First, you are talking about the accountability of these investigations that take so long; secondly, adding to that the complexity and problems of a Bill that introduces a longstop is opening the doors to some real problems here.

Emma Norton: May I make a quick point on that? Another thing that is overlooked is the benefit of some of this litigation that we are discussing now to soldiers and the MOD more widely. The Snatch Land Rovers are a good example of that, because those Land Rovers are no longer used in those kinds of conflict. If those families had not brought those claims, we would not be in this much-improved situation. That is an example of the positive outcomes of litigation, and that is worth reminding you of.

[Carol Monaghan]

Q Could part 2 of the Bill be seen, then, as harmful to serving personnel and veterans?

Ahmed Al-Nahhas: Yes, potentially. It would not encourage people to come forward and bring claims. It is normally a very brave lawyer who takes on a case that is out of time in the first instance; the reason section 33 is there is that it allows flexibility only in the most exceptional of cases. If you were to take that away and introduce this Bill, you would see less litigation on these issues. Emma raises an important point; it is certainly my experience and the experience of our members that it is primarily through litigation that organisations such as the MOD listen and change. That is one of the aspects of removing those protections that causes us great concern.

[Carol Monaghan]

Q I am not sure whether it was you, Ahmed, or Emma who mentioned the issue of hearing loss earlier. I am wondering what happens if veterans or serving personnel have suffered an injury that cannot be attributed to a single event—for example, a number of things could contribute to PTSD. I am not a lawyer, so how does it work under this legislation if there is some dubiety over which particular event caused the injury?

Ahmed Al-Nahhas: That is one of the big problems with this Bill: it will encourage a great deal more argument. As I said in my answer to the previous question, I think the Ministry of Defence will seek to use this Bill to strike out claims. Using noise-induced hearing loss as an example, as you did, that is a very typical injury that service personnel suffer. They normally get compensated through the AFCS, but where there is negligence, they can get significant compensation. By “negligence”, I mean where the Ministry of Defence has, for example, not provided sufficient training or sufficient equipment to protect that serviceperson’s ears.

Those exposures to harmful noise can happen throughout a career. It becomes very complex, because as a lawyer you are investigating the entirety of someone’s career, with their medical records in one hand and their personnel file in the other. You are looking at overseas operations, maybe in Iraq or Afghanistan, and you have to explore whether they were exposed to a certain level of noise that may have been harmful. If I can put it simply, they are complicated enough as they are. Introducing this Bill will only do two things: it will increase the challenge to service personnel in bringing claims, and it will complicate claims unnecessarily.

[Carol Monaghan]

Q Thank you. I do not know whether you have any additional comments on that, Emma.

Emma Norton: No, I do not have anything to add on that. I was just going to say that there are often references to the armed forces compensation scheme, and it might be worth briefly mentioning on behalf of service personnel how dreadful they find it to try to operate that scheme. Ahmed has more experience of this than I do, but a lot of my clients have described to me how bureaucratic, difficult, slow and stressful it is, and it is true to say that the awards you would generally expect to recover from that scheme are significantly lower than those you would expect to recover if you succeeded in court. Ahmed will correct me if I am wrong about that, but I think it is a point worth making.

[Carol Monaghan]

Q My final question, playing devil’s advocate I suppose, is, what benefit is there to veterans from part 2 of the Bill?

Ahmed Al-Nahhas: I am struggling, to be honest with you. As Emma pointed out, this is all about civil claims that are brought against the Ministry of Defence; it is not about civil claims that are brought against service personnel, so I am really struggling to find any advantage for service personnel. When you are stripping away their access to section 33 of the Limitation Act, you are ignoring those exceptional cases in which a judge may think, “You know what? This case is out of time, but there are really good reasons why we should proceed with it.” It may be for reasons of accountability, which we have touched on, or it may be because that particular claimant deserves some justice. When you start stripping that away and then start stripping away the protections under the Human Rights Act, service personnel are left vulnerable—more vulnerable than civilians, more vulnerable than prisoners. I do not understand what advantage they are getting out of this.

Emma Norton: I agree with that. I do not have anything to add to that.

[Mr Jones]

Q I struggle to find consistent statistics about civilian claims against the MOD, and some people have clearly given the impression that all civilian claims are by Phil Shiner-type claimants. As a former Minister, I know that a lot of them are from serving personnel, veterans and family members. Are there any statistics on how many claims armed forces personnel, family members and veterans bring against the MOD each year?

Ahmed Al-Nahhas: There are, sir. They are published by the MOD on an annual basis. The MOD split the figures according to the type of claim that is being brought. What you are looking for is what they term employer’s liability claims. The figures are available online. I am happy to provide them, but I am sure you have quicker access to them than I do.

--- Later in debate ---

[The Chair]

I will call Carol Monaghan, because we can go on until 5.15 pm, and I want Carol to have the opportunity of asking her questions.

[Carol Monaghan]

Q Thank you, Mr Mundell. A lot of my questions have already been asked, so I will not be too long.

I just want to ask a few questions about part 2 of the Bill. In the briefing sent by Liberty and Human Rights Watch, Amnesty International and I think a few other organisations, one thing it says is,

“It is notable that by far the largest proportion of claims against the MOD between 2014 and 2019 were brought by service personnel seeking compensation for injuries.”

I asked the last witnesses about this, as well. Have we got a Trojan horse situation, where part 2 of the Bill has been snuck in off the back of part 1, so veterans and personnel think this Bill is about helping them, but in actual fact it is putting barriers in their way?

Clive Baldwin: The submission was actually from Liberty and Amnesty; I will not have Human Rights Watch take credit for that. However, in some ways, absolutely, by removing the power of anyone, or by having this backstop, to take action against the Ministry of Defence, it will definitely affect members of the armed forces. So, for some it will be removing protection.

[Carol Monaghan]

Q Martha, do you agree with those comments?

Martha Spurrier: This Bill protects the MOD and the Government much more than it protects anybody else.

[Carol Monaghan]

Q We have been told that the six-year limit is actually to encourage prompt claims, which might be one line of argument. Are there any circumstances in which you can see that personnel would not make a claim within those six years? Martha, do you want to start with that one?

Martha Spurrier: Yes, I think there are plenty of circumstances in which there would be entirely fair and honest reasons for not starting a claim promptly. The one example that I have already alluded to is the case of noise-induced hearing loss, where an injury may develop over a matter of decades of service, and the date of knowledge may occur after the six-year time limit has already elapsed, and then you may be prohibited from bringing a claim for really no good reason.

That is why you need to be able to have flexibility in the hands of the judiciary when considering these claims. That is not to say that claims that could have been brought promptly but were not should be allowed to proceed; maybe they should not be allowed to proceed. However, that is not what this longstop will do. This longstop will just create a bright line that creates injustice for people who fall the wrong side of it, even though they may have perfectly good reasons for doing so.

[Carol Monaghan]

Q Thank you. Mr Baldwin, do you have any additional comments to make?

Clive Baldwin: Just to add that, although some time limits on civil claims are quite common in systems, there needs to be that element of flexibility or fairness. Can we imagine situations in which there are good reasons not to bring claims within that time limit? Quite a few, particularly for overseas operations in which, as we said, the situations are complex and people may not even be aware of their rights, or rights to bring a claim, until later, or even until they have left the armed forces. That is why the overriding principle has to be one of fairness. People may need to justify why they are bringing a claim later than they could have done, but they may have good reasons to do so, and the judiciary needs that element of flexibility to respond to those situations.

[Carol Monaghan]

Q This is my final question to both of you. Do you feel that veterans are being misled by the Government spin around the Bill, particularly with regard to part 2?

Clive Baldwin: Quite possibly. You would have to ask the veterans. The idea is that the Bill will protect veterans, but as we said, on the civil side, it will clearly take away some rights, and on the criminal side, it will not stop investigations; it may stop prosecutions, but very few have been happening anyway. It increases the risk of international criminal investigations against members of the armed forces and others if the UK does not appear to have a credible system of prosecution of international crimes. Yes, the Bill, in its current state, does not seem to strongly protect veterans and other members of the armed forces from some of the real injustices that some of them have suffered.

Martha Spurrier: I agree with that proposition. The Bill does nothing to deal with slow, ineffective or unfair investigations, which is what service personnel are complaining about. Certainly, the families and the people who Liberty has represented are often bringing cases against the Ministry of Justice or against the Government after years of banging their head against the wall of institutional power. The Bill will do nothing to help those people seek justice and accountability.

[The Chair]

If there are no further questions, I thank our witnesses, on behalf of the Committee, for their evidence this afternoon. That brings us to the end of our oral evidence session today. The Committee will meet again in this room at 11.30 am on Thursday to take further evidence.

Ordered, That further consideration be now adjourned. —(Leo Docherty.)

Overseas Operations (Service Personnel and Veterans) Bill (Third sitting)

Carol Monaghan Excerpts

Committee stage & Committee Debate: 3rd sitting: House of Commons
Thursday 8th October 2020 Public Bill Committees

[Sarah Atherton]

Thank you, Charles. By the way, your new TV poppy appeal is very good. I saw it this morning.

Charles Byrne: Thank you.

[Carol Monaghan (Glasgow North West) (SNP)]

Q Could you give us examples of situations where individuals might fall out with this six-year limit?

Charles Byrne: In terms of specific examples, I cannot at the moment. I know from the sample size that was taken that there were, I think, 19 individuals or families who fell outside that. I do not have specific examples.

[Carol Monaghan]

Q What about conditions that might fall outside it?

Charles Byrne: This is difficult, because what are the effects of loss or injury that might make somebody find it difficult and challenging to bring forward their cases? The obvious one that comes around is hearing loss, which I think was excluded from those numbers as well. When it is that small percentage, that excludes hearing loss. You can imagine that if there are conditions that are developed over a period of time that do not relate to just one field of operations, and that is a whole area that could fall outside the Bill. If the hearing loss is established over a period of time over a number of operations, you might not be able to trace it back to a particular overseas operation. That is just one example.

[Carol Monaghan]

Q Do you agree that when people sign up for the armed forces, they understand that there is an element of risk with that?

Charles Byrne: Of course, yes.

[Carol Monaghan]

Q Is there also an expectation on their employer, the Ministry of Defence, to look after them in the best possible way?

Charles Byrne: Absolutely, and this cuts both ways. We recognise that if we are asking that the armed forces maintain the highest standards when they go out and serve in difficult situations, there is an equally fair onus on their employer, the Ministry of Defence, to provide them with what is needed do that and the support that is needed.

[Carol Monaghan]

Q Do you find it worrying that the Minister is arguing this morning that it is okay to disadvantage members of the armed forces or retired members of the armed forces because their service puts them at an inherent disadvantage?

Charles Byrne: The Minister has been very clear and welcoming of our disagreement with him over this point. He knows well that we have a different view around the impact of this on the armed forces covenant.

[Carol Monaghan]

Q Okay. Can we talk specifically about part 2 of the Bill? Part 2 puts limits on people making a claim for negligence against the MOD and you are suggesting that that is putting them at a disadvantage compared to civilians or those who have not served. Why is that?

Charles Byrne: Why does it put them at a disadvantage? Because, in my understanding, unless the civilian is being employed by the MOD in overseas operations, there is nowhere else where there is a similar time limit for cases of injury or death that could be brought to an employer. That is the difference.

[Carol Monaghan]

Q The six-year limit is being sold as being beneficial to veterans. Do you see it as such?

Charles Byrne: It is an interesting question. I think there will be support for the intent behind this Bill, because—

[Carol Monaghan]

I am talking specifically about part 2.

Charles Byrne: Yes, indeed. I think there is a level of understanding that is required, but when people understand the potential for limiting the ability of veterans and armed forces personnel to bring claims, that would not be welcome.

[The Chair]

I am going to call Liz Twist, to speak from the microphone.

--- Later in debate ---

[The Chair]

I will call Carol Monaghan, and then come to Joy Morrissey and Mr Anderson.

[Carol Monaghan]

Q I apologise; I did not declare an interest at the start because I did not think it was relevant, but my husband also served in Sierra Leone in the early 2000s.

General Parker, we heard on Tuesday some witnesses saying that they did not feel the Bill would stop the number of investigations and re-investigations that people such as Major Campbell were subjected to. What are your thoughts on that?

General Sir Nick Parker: If it is being used as a tool to undermine our military capability by an enemy, if I was the enemy, I would start thinking about introducing lots of claims against acts of rape and sexual behaviour, because I could use it as a tool to somehow fix the willingness of my enemy to fight. I do not think it will solve the problem. I think we need to address the way we hold the chain of command accountable and conduct our investigations. Those are the two key things. With a chain of command, effective information and an effective investigating system, you will stamp out the malicious claim because you will see it very quickly for what it is.

[Carol Monaghan]

Q The Bill has a time limit on prosecutions. Would you therefore consider that a time limit on the investigation rather than the prosecution might be more appropriate?

General Sir Nick Parker: I do not think you need to have a time limit. I just think you need a system that can investigate effectively. If you can produce the facts, because you have the right level of capability to investigate, you will do it as quickly as you can. I do not think you need to put a time limit on it.

[Carol Monaghan]

I ask because Major Campbell talked about the 17 years of investigation and re-investigation, so some sort of time limit might reduce the chances of that re-occurring.

General Sir Nick Parker: Without going into specifics, there are cases where people have actually been found to be innocent, and then the issue has been returned to because the chain of command has failed to show the levels of integrity and accountability that they should have. An investigation takes place, it is sanctioned by the chain of command as being effective, it is investigated independently, and that is the end of it. It is disgraceful that somebody can be investigated for 17 years and can go and see almost every senior officer—I have to be careful—but it is sort of pushed off because the system has to be allowed to churn on, and yet at the beginning it is already being investigated. That will not happen if you have a credible system that investigates and you address some of the cultural issues in the chain of command by making it genuinely accountable for what is happening.

[Carol Monaghan]

Q Do you think it allows challenges or difficulties within the chain of command to hide behind aspects that are being put forward in the Bill?

General Sir Nick Parker: I am concerned. If you look at things like the report on the Baha Mousa investigation, you see the potential for some sort of cultural resistance to the fact that an investigation is taking place. We need to address how the chain of command approach the issue, because they are fundamentally responsible for what their subordinates do. As an aside, I am slightly nervous that the focus on the prosecution of individuals almost feels as if one is focusing on the people on the frontline as if they are the guilty parties, and we the system are failing to address the issues that we should address because it is our responsibility in the first place. Somebody might accuse me of trying to stand up to the Bill and not looking after our boys and girls.  That is fundamentally not what I am saying. I am saying that we are failing to address the responsibility of the chain of command—its cultural approach to these sorts of issues, and its ability to maintain records and then allow people independently to investigate what is happening, so that we can deal with things quickly. I would suggest that if that were in place, what happened to Bob Campbell would never have happened. For a start, they would not have lost the records of the communications. Why did they lose the communication records in the week of his incident? That will not happen if you have an effective system.

[Carol Monaghan]

Q You have talked about how we might be viewed by our international colleagues—for example, if we are doing a joint operation. Do you think the Bill might affect the willingness of other countries to work with the UK armed forces?

General Sir Nick Parker: I honestly do not know, and that should worry us. If one is in a coalition with a Danish contingent, and if the Danes consider that the way we are approaching dealing with our people is different from their way and they feel that it is culturally incompatible for some reason, that would create difficulties. It might seem slightly pathetic, but I would defer to the eminent legal opinion, which I would not profess to have. All I would say is that when there is a considerable amount of noise about something, I would hope that it is taken seriously. My feeling is that the Bill is moving at such a pace that there are certain key people who should be able to present their evidence—people such as the Judge Advocate General. These are people who have really important views. If there is some doubt about this and we are viewed in the international community as being prepared to operate outside norms, there is an implication for the people who will have to command in the international community.

[Carol Monaghan]

Thank you, General Parker.

[The Chair]

I am going to call Joy Morrissey, who is going to address us from the standing microphone.

Overseas Operations (Service Personnel and Veterans) Bill (Fourth sitting)

Carol Monaghan Excerpts

Committee stage & Committee Debate: 4th sitting: House of Commons
Thursday 8th October 2020 Public Bill Committees

[Stuart Anderson]

Okay. So now you have said that, what would your words to him be?

Judge Blackett: I believe in a Bill with some of the items that I have suggested. What I would say is that the Bill should be stopped, rewritten and, when it addresses the problem, brought back. What would I say to those 5,000 veterans? I would explain that the Bill as it stands will make life worse, not better, and therefore we will look at it again, trying to bring something back that would satisfy your concerns.

[Carol Monaghan (Glasgow North West) (SNP)]

Q Judge Blackett, did you support the exclusion of sexual offences from the Bill?

Judge Blackett: No. I cannot see the differentiation between any offences but, since I do not think that there should be a presumption against prosecution anyway, that is just an academic question.

[Carol Monaghan]

Q How do you feel about the inclusion of torture and war crimes?

Judge Blackett: It is the same answer—this is an academic discussion that you and I are having, because I do not believe that there should be a presumption against prosecution at all. If there is an offence, whether sexual, torture or anything else, it should be prosecuted.

[Carol Monaghan]

Q The Minister asked you why advice over the past 15 or 16 years had not been heeded. Are you confident that your advice, and the evidence that you have given to the Committee today, will be heeded?

Judge Blackett: You are asking me what is probably a loaded political question. I would hope so, and when I met the Minister, Johnny Mercer—not in this forum, but in a more discursive one—he was very interested in some of my options, and I think he asked staff to look at them. I do not know how far that has gone, and I do not know whether any will be brought back, but I hope that, given my experience—

[Carol Monaghan]

Q How long ago was that meeting?

Judge Blackett: About a month ago—something like that.

[Carol Monaghan]

Before Second Reading.

Judge Blackett: It was.

[Carol Monaghan]

Q So were you surprised not to see any change, or any of this within the Bill that was presented?

Judge Blackett: To be fair to the Minister, he said to everybody, “I want to fix this problem, and I am open to any suggestion”—

[Carol Monaghan]

We have heard that many times, but we are slightly concerned.

Judge Blackett: I take the Minister at his word—if he says that he is open to any suggestion, he or his staff must look at it on its merits and, if they see any merits, they will take it forward.

[Carol Monaghan]

Q I was going to ask about the re-investigations, but we have already covered that, so I will move on. Do you have any concerns about part 2 of the Bill?

Judge Blackett: The six-year time limit on civil claims.

[Carol Monaghan]

Yes.

Judge Blackett: The previous witness talked about the inability of service personnel to sue, because of the six years. It is rather like going back to section 10 of the Crown Proceedings Act 1947. That is not really my area of law, so perhaps I am not the right witness to deal with it. I said to the Secretary of State that I thought it was injudicious, but there are better minds than mine who can apply that.

One bizarre thing is that, if this Bill becomes law, there is a six-year time limit but the Attorney General may give consent to a prosecution. Then, clearly, one of the things that the criminal court would be doing is awarding compensation, if there was a conviction. There would still be issues in relation to personal injury claims, which would come through the criminal court rather than the civil court, if it got to prosecution. However, I do not think I am the right person to answer those questions.

[Mr Jones]

Q In your letter to the Secretary of State you said:

“The bill as drafted is not the answer.”

You have been very clear on that today. You have made four suggestions there. I can see a problem with the legal aid one, but the other three relate to procedure for criminal trials in the service justice system. Could they be incorporated into the Bill?

Judge Blackett: Yes. If you need legislation, you can use any legislative vehicle, can you not? Certainly, I would have thought that applying the Magistrates’ Court Act 1980 one, which is applying a six-month time limit to summary-only matters, would be extended. It would need more wording because I believe that should be extended to what should be called de minimis. De minimis claims probably need to be taken before the judge who is overseeing it so he can say, “This is de minimis.” Then, a great raft of those allegations in IHAT and Northmoor would have gone with that.

Overseas Operations (Service Personnel and Veterans) Bill (Seventh sitting)

Carol Monaghan Excerpts

Committee stage & Committee Debate: 7th sitting: House of Commons
Tuesday 20th October 2020 Public Bill Committees

[The Chair]

I am grateful. Thank you.

Clause 4 ordered to stand part of the Bill.

Clause 5

Requirement of consent to prosecute

[Carol Monaghan (Glasgow North West) (SNP)]

I beg to move amendment 10, in clause 5, page 3, line 23, leave out “Attorney General” and insert “Director of Public Prosecutions”.

[The Chair]

With this it will be convenient to discuss the following:

Amendment 11, in clause 5, page 3, line 26, leave out “Attorney General” and insert “Director of Public Prosecutions”.

Amendment 22, in clause 5, page 3, line 29, at end insert—

“(c) where the offence is punishable with a criminal penalty by the law of Scotland, except with the consent of the Lord Advocate.”

Amendment 24, in clause 5, page 3, line 29, at end insert—

“(3A) Where the consent of the Attorney General is sought under subsection (2) or (3) above, the Attorney General must prepare a report containing his reasons for granting or withholding consent, as the case may be, with reference to sections 1 to 3 of this Act, and must lay a copy of this report before Parliament.”

[Carol Monaghan]

I will speak to all three of the amendments in my name and that of my hon. Friend the Member for West Dunbartonshire. Amendments 10, 11 and 22 address the issue of the independence of the decision to grant or withhold consent to prosecution. The Attorney General is, by the nature of the position, a political appointment. Therefore, tying in the prosecution of potentially serious incidents to a politically motivated individual is at least unethical and at worst dangerous.

If we are the healthy democracy that we boast of being, there has to be independent oversight of these investigations. To maintain justice and continue to uphold the rule of law, those decisions cannot be made by the Attorney General. That role should be carried out in England by the Director of Public Prosecutions and in Scotland by the Lord Advocate.

In effect, with these amendments, we are asking the Minister to decide whether the actions of the MOD itself require further investigation. To give an example, that would be like asking the Health Secretary to decide whether a patient had grounds to seek redress for cases of medical negligence. Are the Government really in the business of marking their own homework?

Of course, we all understand why the Government have chosen to press ahead with this Bill. I think we all, regardless of the robust debate that has taken place, have sympathy with the purpose of this Bill, but the manner in which it is progressing is concerning a lot of us. Many parts of this Bill would not address the issues faced by our service personnel. However, having the Attorney General preside over decisions to prosecute will potentially leave a shadow of doubt hanging over some service personnel. Is that really what we want?

I watched the previous exchange; for anybody watching Parliament just now, it was rather unedifying, to say the least. At the start of this process, the Minister said he wanted—[Interruption.] Even as I am saying that, and trying to say it in a generous spirit, the Minister mumbles to himself and makes comments. I was a teacher by profession, and I can tell hon. Members that I would be taking the Minister to task if he behaved like that in my class. He could at least have the decency to listen while a point is being made.

At the start of this process, the Minister said he wanted to listen and that he was happy to take on good ideas. I have yet to see any evidence of that. I am at a loss as to how we actually improve this Bill. Is the Minister so confident in the absolute perfection of this Bill that not only will he not accept any amendments from the Opposition, but he has not tabled any amendments from his own colleagues? I have never seen this in a Bill before. It is unheard of.

Going back to my amendments, there must be independence in the decision-making process. That would give clarity and increase public confidence in the process that is undertaken. Surely, if this Bill is so good, the Minister has nothing to fear from a politically unbiased head considering the evidence and making decisions on whether to prosecute.

[Mr Jones]

I thank the hon. Member for Glasgow North West for the amendment. I am not sure that I totally agree with it, although I agree with the spirt of it. The hon. Lady is trying to ensure judicial oversight of these decisions. Her recommended route is the Crown Prosecution Service, and she is right, in that that is at least a judicial process that is separate from the Attorney General, who is a political figure.

Coming back to my remarks about clause 4, the reason the CPS was set up in the first place is because it was the police who investigated and then also took the decision to prosecute, so the CPS was brought in, quite rightly. Has it improved the system? Yes, it has. Do we always agree with what the CPS comes up with? No, we do not, and I doubt whether we always would in every legal case. However, as the hon. Lady said, that does not mean that the process is weak in any way. It means that it is legally robust.

The hon. Lady is suggesting the CPS, but my concern relates to the service justice system. I would rather the Advocate General decided, although I say that in the same spirit as the amendment. The other concern, which a number of witnesses raised, is about the role of the Attorney General as a political appointee. I think Judge Blackett mentioned that in its recent judicial reforms Kenya has made its Attorney General politically independent for that exact reason: so that the position is seen as being above politics.

That is important, because in the case Marine A, which has been raised before, there was a lot of publicity at the time in the newspapers and campaigning about why that person was being prosecuted, often without knowing what had occurred or having seen the video or other evidence that was put forward. If the Attorney General had been the final arbiter of whether to prosecute in that case, they would have come under huge political pressure not to prosecute, and that would not be right.

The other side to this is our standing in the world. If we are to have a system where we properly investigate alleged crimes and have a fair process to decide who to prosecute, then ultimately, although there are other issues in the Bill that raise problems, if it is down to a political appointee whether someone is prosecuted, the International Criminal Court and others would take a dim of that, in the sense that it would be a political decision, not a judicial decision.

It is interesting to look at it from the angle of someone who has been through the process. When Major Campbell gave evidence to the Committee, the hon. Member for Wolverhampton South West asked him:

“Thank you, Major Campbell. It is an absolute disgrace…Will you confirm whether you welcome the Bill or whether you are against it?”

Major Campbell went on to say:

“I fully welcome the Bill, both in its intent and in its content. Again, in my amateur legal opinion, there may be a legitimate argument to be had over whether the Attorney General is the correct address in terms of being the final arbiter of further prosecutions, due to the advice he gives to the armed forces on the legality of a conflict.”

He then went on to be quite disparaging, because of his frustration, which I think we all understand:

“My other slight concern is that previous Attorneys General have done us no favours...Lord Goldsmith had a lot on his shoulders…When I appealed to Jeremy Wright, and when he gave evidence to the Defence Sub-Committee…he took the view that this was an entirely fair process”.––[Official Report, Overseas Operations (Service Personnel and Veterans) Public Bill Committee, 6 October 2020; c. 24, Q54.]

He was concerned about the role of the Attorney General.

--- Later in debate ---

[Carol Monaghan]

First, I will respond to the comments the Minister made at the start. There is a huge difference between debating in the Chamber, with comments being passed to and fro, and making a speech in a room such as this and having somebody mumbling under their breath while doing it. It is disrespectful and it should not happen. The Minister is a military man. I would love to have seen him behave like that when one of his superiors was addressing him in his former career. I have no intention of withdrawing the amendments. Nothing the Minister said assured me that there would be an unbiased situation when considering prosecutions, so I will push them to a vote.

Question put, That the amendment be made.

--- Later in debate ---

[Carol Monaghan]

This is exposing an ambiguity right here, right now. Up until this point, the Minister has talked about the point of knowledge of the injury or the disablement. Now, he is talking about the point of knowledge of the issue with the equipment. What are we talking about and where in the Bill is that differentiated? If there is no clarity, we will have a situation with lawyers because of that ambiguity.

[Mr Jones]

Yes, and the lawyers will use it to protect the MOD. Like I say, if the Minister and I had to judge, we both would say “Yes, give the benefit of the doubt to the veteran.” I certainly would. However, neither he nor I will be there. It will be down to some Minister in the future and some lawyer to do that.

Coming on to asbestos, let me give an example. The issue in the early test cases on asbestos that I dealt with was about the date of knowledge. As my hon. Friend the Member for Islwyn just said, the issue with asbestos and asbestos-related diseases is that they can lie dormant for 20 or 30 years. It is an indiscriminate issue. I have met men who worked with asbestos and have what they call asbestos scars—asbestos in their skin—with no symptoms whatsoever and no health effects at all. I have also dealt with cases where a doctor and a nurse, who were just walking through a tunnel where an asbestos pipe was broken and were being covered in asbestos every day, developed mesothelioma, which we all know is a death sentence within 18 months to two years.

The MOD used to have a get-out because of Crown immunity; it could not be sued. As such, we are bringing back time-barred Crown immunity and saying to people that they cannot take cases against the MOD. Would cases around asbestos be time barred? I do not know. Again, why change it? I accept what the Minister is saying—we do not want frivolous and vexatious cases—but if they are time barred, there is a perfectly legitimate system in place at the moment called the Limitation Act, which allows people to take a case forward, if they wish to or their legal representatives feel there is a case.

Overseas Operations (Service Personnel and Veterans) Bill (Eighth sitting)

Carol Monaghan Excerpts

Committee stage & Committee Debate: 8th sitting: House of Commons
Tuesday 20th October 2020 Public Bill Committees

[Mr Jones]

It was, and that is where the disagreement about the figures comes from, and not for the first time in this Bill. Early on, we asked for the number of litigation cases, which was the reason why the Bill was introduced. We got various arguments, and one figure was 900 and another 1,000. If we want to act in the best interests of veterans, we need to know the extent of the problem, so my hon. Friend makes a good point. Again, even if we accept the figure of 94%, then 6% of people will not be able to take claims against the Ministry of Defence—including, as was argued by the personal injury lawyers, in those like the Snatch Land Rover cases and the ones that I outlined this morning. That cannot be right. I do not understand what the Government think is to be gained from taking away the rights of veterans and service personnel.

We are dealing with small numbers here, but this is important. If I was in prison—perhaps some on the Committee wish I was—and I made a claim against the Ministry of Justice, there would be certain time limits. But there are always cases under the Limitation Act that fall outside those limits. Prisoners have the right to take those cases out of time and stand before a judge, or have legal representation, to argue that they need their case considered out of time. They can do that because of section 33.

Asylum seekers can do the same. A claimant against the Ministry of Justice, whether on housing or anything else, can argue successfully to a judge that they had not brought the claim because of various circumstances, such as a refugee’s trauma from being in a war zone, and that they need a chance to bring their case, although there is no guarantee that their case will be accepted. That is the case with veterans, too. The representative from the personal injury lawyers said that the numbers of such cases are small, but when the application does work and a judge says that the time limit does not apply, it is very important. Snatch Land Rover is a great example of a case against the MOD.

Would that be a case against the armed forces? No, it would be against the MOD. No disrespect to the MOD lawyers—they are just doing their job—but if this provision is introduced, they will use that six-year backstop as a way of arguing that a case cannot go forward. The individual will have no rights whatever to go before a judge and argue that their case, for certain reasons, should be made an exception. The MOD is protected, rather than the veteran or serviceman or woman. That cannot be right.

We are brought back to the point of what is missing throughout the Bill. I accept what the Minister says: that he is passionate about these issues, and if it were down to him—if it were down to me and some others in this room, too, to be honest—veterans and servicemen and women would get first dibs every time, and quite rightly. But it will not be down to us; it will be down to officials in the Ministry of Defence.

Having worked with them, I have huge respect for officials in the Ministry of Defence, but they are in civil service mode. If they can protect the organisation, they will. That is not to be discredited. I remember dealing with lawyers in the MOD when I was there over the nuclear tests veterans cases, where, frankly, we were going to spend millions of pounds on a case that should have been settled. I successfully argued for a settlement proposal to be put forward; unfortunately, it was rejected by the other side. Again, the natural reaction was to defend the indefensible. I said, “Wait a minute—how much do you want to spend in lawyers’ fees to do this?” That is what will happen here. It will be an easy get-out for the MOD, because it will have the protection of a backstop of six years in law. The individual will no longer have the right.

Judicial oversight is a problem throughout the entire Bill. Having employed lawyers in a previous life and dealt with them over many years, am I a great fan? I am a fan of some of them, because some are very good. Some are also very bad, as the hon. Member for Darlington will attest. The point is that they do their best on behalf of their client. They are not making things up; they are using the laws that we pass in this place to advance the case that someone has presented before them. We should not be putting obstacles in their way, in terms of servicemen and women and veterans.

This is really a probing amendment. Someone asked, “Is it a bit of fun?” No, it is actually a serious point. When the average person on the famous Clapham omnibus realises that we are taking rights away from veterans and that prisoners and asylum seekers will have more rights than veterans, they will rightly be appalled.

Even if the Minister cannot accept the amendments today, I urge him to reflect on part 2 to see whether we can remove it from the Bill. We should at least ensure that the disadvantage to servicemen and women and veterans is not enshrined in law. If that happens, it will be a travesty. It would actually be a disappointment to the Minister, because he is trying to protect victims—instead, he will have done something that makes their lot in life worse. As a number of people said in the evidence sessions, servicemen and women and veterans have too few rights as it is. Taking away more of them cannot be right.

[Carol Monaghan (Glasgow North West) (SNP)]

First, I thank the right hon. Member for North Durham. I agree with everything he has said. Of course, I raised part 2 of the Bill on Second Reading—I have major issues with it. One of the SNP’s amendments, which unfortunately was not selected, was about removing time limits completely. Perhaps a better idea would be to remove part 2 of the Bill.

Having sat through Second Reading, four sessions of oral evidence and this morning’s session, I still cannot see how a six-year limit on claims benefits veterans. I know the Minister has tried to explain the measure by saying it will allow them to make claims more easily, but the reasons why veterans are not claiming are very complex. Frankly, I have serious doubts about the time limit, as does the organisation that has arguably done more for veterans than any other: the Royal British Legion, which stated its concerns about part 2 of the Bill. It has said that, as currently drafted, part 2 introduces a time limit for civil claims from veterans, serving personnel and their families where one does not currently exist, and it risks a breach of the armed forces covenant, as there will continue to be no limit for civilians in relation to their employer.

During the evidence sessions, the Minister said it is a disadvantage to have to go and serve and put one’s life at risk. We understand that—none of us is disputing that—but we are talking about whenever we are comparing like for like, claim for claim. Does the Bill put veterans at a disadvantage? It absolutely does. The Royal British Legion has said that part 2 of the Bill should be improved to ensure that no member of the armed forces community is left subject to a time limit when pursuing a civil claim against the Ministry of Defence as an employer, and to avoid a breach of the armed forces covenant.

Personal injury awards can be substantial, so we understand why the MOD wants to minimise the opportunity for such claims, but if harm has been done to individuals that is due to negligence, why are we making it more difficult for them to seek recompense?

--- Later in debate ---

[Mr Jones]

I agree with the hon. Member on hearing loss cases, having dealt with such cases in shipbuilding. The person will agree that they have lost their hearing; it is about whether the hearing loss can be pinned back to where it was lost.

[Carol Monaghan]

We have also heard examples of veterans who have served in multiple conflicts or operations where they have been exposed to loud noises, explosions and all sorts—which one caused the hearing loss? Could it otherwise have been caused at a firing range in the UK? That is a real difficulty, and it causes problems.

[Mr Jones]

If overseas operations will be excluded after six years while for cases in this country a case could be made under the Limitation Act 1980, does the hon. Member not think that will also complicate hearing loss cases, if it must be determined where the hearing loss took place? It will be difficult to disaggregate these points.

[Carol Monaghan]

In such situations, we know that the person who will benefit is not the veteran. That is the problem with part 2 of the Bill and the six-year limit. There must be protections in place to ensure that veterans who have served and suffered personal injury can seek justice for those injuries.

There are other examples, such as the nuclear test veterans. It was good to hear about the work done by the right hon. Member for North Durham on that. I have had interactions with those veterans, including a constituent of my own who, sadly, died. Many have waited decades and decades for compensation and have had nothing—not even any medals to recognise the service they undertook. There are still ongoing issues, and again the MOD has denied that the cancers that those veterans have suffered are related to their service, despite a number of them having similar cancers and there being no links other than the Christmas Island testing.

I could also mention Lariam, an anti-malarial drug that can cause real issues for individuals’ mental health, but not always instantly—it can happen on a much later date. My own husband was given Lariam and suffered as a result. Thankfully, he has not had any long-term issues, but many individuals’ mental health is affected many, many years beyond that.

[Jack Lopresti (Filton and Bradley Stoke) (Con)]

I really enjoyed the hon. Member’s speech this morning— I did not agree with most of it, but it was well presented, with a good argument made. Is she saying that there should be no time limit at all for actions being brought?

[Carol Monaghan]

I thank the hon. Member for his kind comments. There is already a limit, but that limit can be looked at and overridden in certain circumstances. That should remain in place; there is no reason to take that away. We are not saying, “We encourage all veterans to wait 30 or 40 years”, but there must be some protections. There cannot be a hard stop that prevents them from taking any action.

We all understand the Bill’s purpose and why it has been brought forward, even though we might not agree with all of it and we might have issues with some of it, but part 2 of the Bill makes no sense whatever. The Bill has been sold to veterans as protecting them and looking after them, with the Government having their back. Actually, part 2 does the opposite. Why do the Government want to prevent between 19 and 50 veterans from seeking justice? I would like to know that from the Minister, because we have not yet had a decent answer on that point.

[Mrs Lewell-Buck]

It is always a pleasure to serve under your chairmanship, Mr Mundell. I rise to speak briefly about part 2 of the Bill. I will try not to detain the Committee by repeating the comments of other hon. Members.

Time and again, concerns have been expressed in written and oral submissions to this Committee—they were mentioned again today by my right hon. Friend the Member for North Durham—about the civil litigation longstop. If this part of the Bill is unamended, there is a high risk that the Ministry of Defence will not be held accountable for violations of soldiers’ and civilians’ rights—the largest proportion of claims made against the MOD are claims of negligence and of breaches of the MOD’s duty of care towards its soldiers. Between 2014 and 2019, the available data shows that such claims amounted to more than 75% of all claims.

Part 2 of the Bill will benefit only the Ministry of Defence, and yet the Ministry of Defence is the defendant in all those claims. That is a clear conflict. The Minister and the Department have created a policy that protects them from legitimate legal claims. I am unaware of any other instance of our legislation being drafted in such a way as to protect the defendant over the claimant. I find it astonishing that the Minister wants to treat our forces and veterans in that way, placing them as such gross disadvantage.

As my right hon. Friend the Member for North Durham said, there remains a lack of clarity about the number of people who would be disadvantaged by the longstop. It would be helpful if, in summing up, the Minister provided some transparent and accurate figures to clear the issue up, once and for all. We are making legislation without proper knowledge and without a proper basis.

In oral evidence, we heard over and over again that the Bill protects the MOD, but not our forces. It breaches the armed forces covenant. It gives our forces less protection than civilians and, in some cases, even prisoners. We heard that from not one or two witnesses, but a broad and wide-ranging group of organisations, some of which, traditionally, would not necessarily agree with each other: the Royal British Legion, the Centre for Military Justice, the Association of Personal Injury Lawyers, Liberty and Human Rights Watch. Written evidence struck the same chords. When the Minister gave evidence, he appeared unable to find literally anyone at all who supports the longstop. If someone does, I hope that the Minister will share that fact with us.

The whole point of Bill Committees, as I have said repeatedly, is to improve and amend legislation, so that it emerges better than it was when it arrived with us. Indeed, the Minister has stated many times on the record that he wants to work with people in and outside this place to make the Bill the very best it can be, so that it meets its intended aims. I sincerely hope that that commitment was not an empty gesture. A good way to prove that it was not is to consider our amendments, listen to our comments and take them on board, and ensure that so many people are not disadvantaged when making claims against the MOD.

--- Later in debate ---

[The Minister for Defence People and Veterans (Johnny Mercer)]

It is good to see you back in the Chair, Mr Mundell.

I appreciate the opportunity to address some of the points raised. My intention is not to disparage Members’ intentions, because I get it: people want to support our armed forces and do not want to disadvantage them. I do not want to disadvantage them. However, some things—the data is a good example—are being totally misused to promote these points. For example, on the statement that from 2014 to 2019 there were however many thousand claims, that number includes claims in the UK that people would bring under tort or civilian law against an employer. This Bill does not apply to that; it is called the Overseas Operations (Service Personnel and Veterans) Bill. In no way are those comparisons being made in a fair manner. This Bill applies only to those allegations and claims that affect our service personnel overseas.

[Carol Monaghan]

rose—

[Johnny Mercer]

I will get to my point. There were 552 employer liability claims from what happened in Iraq and Afghanistan. Today’s Daily Mirror had sounded familiar to a couple of the speeches: it mentioned “21,000 claims”. It is total nonsense. That is the total number of claims that people have made against the MOD in the period from 2004 to 2017. They are claims in a civilian workplace environment, where there are civil liabilities claims, claims regarding exercises and so on in the UK, and breach of contract claims. In the Bill, we are talking specifically about overseas operations. Whoever is providing these figures is demonstrating a pretty basic misunderstanding of what is going on—or it is a deliberate attempt to mislead, but I am sure it is not. The two things are not comparable in any way.

--- Later in debate ---

[Johnny Mercer]

The figures have been published in the impact assessment a number of times. The hon. Lady can shake her head, but again, we are in a space of alternative facts. The figures are in the impact assessment, which is before the House.

[Carol Monaghan]

The Minister is talking about overseas operations. We all understand that, and that the Bill applies to those serving overseas. However, if my employer sends me overseas, and I suffer an injury there due to the negligence of my employer here in the UK, I can sue the employer for the injury. The same should be the case for veterans. It is not about whether it is overseas or here; it is about having the same rights as civilian employees.

[Johnny Mercer]

I disagree, and this is why. Operational service overseas is fundamentally different from life in the UK, and from what we ask our people to do. The hon. Lady is absolutely right: we have a duty in this country to protect those overseas, whether it is against improvised explosive devices, bombs, electronic warfare, or indeed legal systems used to bring warfare by another means. That is what this Bill is trying to do.

I understand the assertion that if someone from the Royal British Legion was deployed on an operation, the six-year limit comes down. Viewed on its own, that is something that will happen to serviceperson, but not a civilian. Disadvantage is a comparable term. Disadvantage to who? The Government argue—this I am clear on—that these people are seriously disadvantaged by having no legal protection against these thousands of claims that we have seen come in over the last 15 or 20 years. What the Royal British Legion would like us to do is to put that to one side—[Interruption.] No, it is, because I have engaged with it extensively. It would like us to apply that to one side of the argument, which, again, is not legal. Under European human rights law, people are being disadvantaged and discriminated against based on the claimant, which is not legal. This cannot be brought in on one side.

--- Later in debate ---

[Stephen Morgan]

My right hon. Friend is absolutely correct. We are saying it time and again, but the Bill protects the MOD; it does not protect our troops. I hope the Minister will take that point on board.

[Carol Monaghan]

Does the hon. Gentleman share my concern that the Minister is suggesting that we are raising concerns because of a campaign group? Personally, I am not raising concerns because of a campaign group; I am raising concerns because of the protections being taken away from armed forces personnel and veterans. When an individual gets a diagnosis of PTSD, I cannot imagine anybody thinking, “The first thing I am going to do is lodge a claim against the MOD.” When a condition gets progressively worse, they might think about doing so over time, but not necessarily within six years.

[Stephen Morgan]

I thank the hon. Member for that intervention. We are not here just to speak up for campaign groups and emails; we are here to speak up for our armed forces. That is why we are absolutely keen to see the Bill improved. I really hope the Minister engages with these points in his summing up.

Is the Minister satisfied that the Bill in its current form will prevent troops who are suffering from these conditions from receiving justice? As we heard from APIL in evidence sessions last week, many troops are not aware that they can bring a claim against the MOD. They are directed to the armed forces compensation scheme, which pays out much lower sums. Why is it that the MOD has scrapped the proposed better compensation scheme, which would have seen payments that are closer to those offered in court settlements? Why is it that the Government are willing to introduce a six-year longstop for troops, but not for civilians? It puts troops at a patently clear disadvantage by comparison with civilians. As we heard last week from the director general of the largest armed forces charity in the UK—the Royal British Legion—it risks breaching our armed forces covenant.

Part 2 of the Bill in its current form protects the MOD; it does not protect our troops. Despite all this, it is not too late. The Opposition have proposed solutions today, and we can work together to address this issue. Protecting service personnel’s access to justice acts on the concerns voiced by friends such as the Royal British Legion.

--- Later in debate ---

[Johnny Mercer]

Thank you, Mr Mundell. I have to deal in the real world. I have to deal with real facts and figures—not made-up stuff—and how they apply to the battlefield. There is clearly a difference of opinion between the Government and the Opposition about whether the ECHR should be applied on the battlefield. I accept that. That is the point—that ability to continue these extensions is part of ECHR compliance. The Government do not agree that the battlefield is the right place, or that retrospective application of the ECHR to the battlefield is appropriate.

I have seen comparisons with convicted criminals a number of times in a lot of campaign items. Hon. Members are comparing convicted criminals to armed forces veterans. That comparison—prisoners to veterans—has been made a number of times. I can tell Members that that goes down like a cup of cold sick in the veterans community. It is not comparing the same things.

[Carol Monaghan]

Will the Minister give way?

[Johnny Mercer]

I will give way in a moment.

The Bill has clearly been introduced to protect our servicemen and women when they conduct overseas operations. The purpose of the limitations is to stop large-scale out-of-time and often vexatious claims being brought against the military on overseas operations. I urge Members to think a bit more about comparing veterans with convicted criminals.

--- Later in debate ---

[Chris Evans]

I am glad the Minister has confirmed that.

[Carol Monaghan]

I am looking for clarity. Why would the overseas nuclear test veterans not be considered to have been on an overseas operation?

[Chris Evans]

I should ask the Minister to reply to that—I am just the post box here.

--- Later in debate ---

[Chris Evans]

Service personnel might have knowledge of the event or series of events that the claim relates to, but many are under the impression that they cannot bring a claim while they are serving, or that their only route to redress is through the armed forces compensation scheme. This means that the date of knowledge should encompass not only the date of knowledge of the injury or the subject of the claim but the date of the knowledge that they had a right to claim—the date when they knew they had a case. That can be many years later and must therefore be taken into account if the Government insist on introducing a time limit.

The 2009 High Court case of 1,000 veterans of nuclear testing was fought and eventually lost on precisely this issue. The MOD argued that some veterans knew they were ill when they joined the British Nuclear Test Veterans Association in the 1980s, when it began campaigning. That was not the case. They knew they were ill at the time, but they wondered only if there was a link. The true point of knowledge can only come when a doctor confirms a possible link, which for many does not happen until years later. To me, that is the point of understanding.

[Carol Monaghan]

The problem with the nuclear test veterans—it could apply to other examples—is that there is actually a clear date of incident, many decades before. Although their point of knowledge of harm might have been much later, there was a clear date of incident, which the MOD could use to its advantage.

--- Later in debate ---

[Mr Jones]

I thank my hon. Friend for moving amendment 76. He makes a good point: whatever legislation we put in must be future-proofed. There are claims that it will do x, y and z, but we have all seen legislation that goes through Parliament with the best of intentions, but, as things change, still sits on the statute book and disadvantages individuals. Is it ever possible to future-proof legislation completely? No, it is not, but it is certainly possible to ensure that we do not put things in a Bill at the start that discriminate against veterans and armed forces personnel. That should be the starting point for this.

In this group of amendments, I will speak to my amendment 92, which relates to clause 11, page 7, line 36, leave out,

“or first ought to have known”.

It gets to the point that my hon. Friend has just referred to about date of knowledge and the issues surrounding it. Is it straightforward to know when a condition happens? No, it is not, as he eloquently explained, and I will explain some examples in a minute.

Many conditions that arise from service are complex; they first require diagnosis, and that sometimes takes time. If someone has a condition and knows they are suffering from something, that is their date of knowledge, but it might take several years to diagnose exactly what it is. Also, as we heard in the evidence session and has come out again today, it may take time for members of the armed forces to recognise that they might have a claim against the Ministry of Defence anyway. I hear what the Minister said about how we should publicise that, and I welcome the idea that we should make it known to people that they can make claims for injuries or conditions, whether through publicity or just ensuring that people know it, both when they are in service and when they leave. That must be recognised.

The conditions fall into two areas. If we look at industry—I know the Minister will say that is different from the military, and it is in many ways, but in other ways, on key issues such as hearing loss, there are some clear links—over many years litigation has led to improvements in standards and training, and I would argue that that should also be a lever in terms of the MOD.

I remember, when I was in the Ministry of Defence, dealing with the question of hearing loss. To be honest, I accept that in combat operations people are going to be exposed to loud noise. They are, and I do not think we can get away from that fact. But when I think back to the MOD in those days, we were paying out huge claims—quite rightly—for people’s hearing loss caused by training and other things, and it struck me that we were not getting to the root cause. As I said this morning, litigation can be seen, not as ambulance-chasing from the claimant’s point of view, but as a way of informing the MOD that it should change things, and can change things.

[Carol Monaghan]

Another example, of course, is the Snatch Land Rovers, which we have heard talk of many times. It was only because a claim was brought against the MOD that safer alternatives were put in place.

--- Later in debate ---

[Mr Jones]

Yes it would. That, and doing away with the six-year backstop. My hon. Friend the Member for Blaydon makes a good point. The individual might not know that they were suffering from the condition, in terms that a judge would be able to look at to say they should have known about it and they should have brought a claim. I think the evidence outlined by my hon. Friend the Member for Blaydon is right: there was a reluctance to bring claims, which meant they ended up out of time. Major injury sufferers should know the date of diagnosis, but not necessarily the full impact of the condition on their service—it might not be a showstopper in their career, but in the long term it might affect their career and their ability to find post-career employment.

Another example is non-freezing cold injuries: this is not a surprise to the MOD because it knows about them. There are things that can and should be done, without putting the onus on the individual to self-diagnose the date of knowledge.

The other issue, raised by the hon. Member for Glasgow North West this morning—I mean earlier this afternoon: I am enjoying myself so much I have lost track of time— is hearing loss, the date of which is notoriously difficult to determine. In my previous incarnation, in a case of someone working with loud machinery in a factory all their lives, it is easy to pinpoint what has caused the loss of hearing. The problem for service personnel is that their careers are very varied, and although hopefully the MOD has training in phases 1 and 2 about protecting young ears especially, what is the crucial issue that leads to hearing loss, or hearing impairment? In military life, there will be exposure to loud noises: it nearly as much a fact of life as us having to listen to loud noises every day in the Chamber of the House of Commons.

[Carol Monaghan]

Just as a point of clarification, not all service personnel are exposed to loud noises: they talk about the silent service.

[Mr Jones]

Yes, but that can lead to other problems, such mental health issues. I think I referred to the 1902 situation when submarines were first invented, and there were issues with pressure that had an effect on people’s bodies, which led to further issues. I accept that it does not affect everyone.

Under the Bill, how can people disaggregate when their hearing loss took place? If a certain proportion of someone’s life was spent in overseas operations, are we saying that that part of the hearing claim cannot go forward as it is exempt, as it is beyond the six years? That is where it gets very complicated, which is why I think the clear system that we have at the moment, in which if people make a claim after the time limit, they have the possibility of taking the claim under section 33 and are able to argue their case. I reiterate the point that that is not an easy process.

When I asked the Minister how many of Phil Shiner’s cases were time-limited—could have been struck out due to the time limits—and how many he actually argued in court—the Minister did not say. It would be interesting to know—