Overseas Operations (Service Personnel and Veterans) Bill

Debate between Carol Monaghan and Kevan Jones

Wednesday 21st April 2021 Commons Chamber

[Carol Monaghan]

I thank the hon. Gentleman—yes, of course. We heard evidence directly from Major Robert Campbell in the Bill Committee, who has gone through 17 years of hell, of repeated investigations. There is no doubt that people looking at that—serving personnel and potential serving personnel—will consider their future career.

[Mr Kevan Jones]

The hon. Lady is right, but the missing point in this is investigations. It was heartbreaking to hear Robert Campbell’s evidence to the Committee, but if the Bill goes through as it stands, there will be nothing to stop another case like Campbell’s going forward in future. This has been sold as a way of stopping vexatious claims and investigations, but without change in investigations, it will not do that.

[Carol Monaghan]

And in fact could make it worse. If we throw the ICC into that as well, potentially, we could have a much worse situation for personnel who are facing prosecution.

On Lords amendment 3, any derogation from the European convention on human rights for future overseas operations would have set a damaging precedent for an international treaty—an international treaty that this country played a major role in drawing up. These proposals would have undermined the protections that the UK was so integral to establishing. We welcome Lords amendment 3 and are pleased that the Government have accepted it. It is one of those common-sense ones that should not have needed to come to this stage, but we have got there, so we are thankful for that.

On Lords amendment 4, I spoke on Second Reading and in Committee about the issue of the time limit on claims. One thing that was raised was that some personnel are told, while they are still serving, that they are unable to pursue a claim, which is false, or they are told by those higher up the chain of command that they do not have a valid claim. The nature of the armed forces is that, for many serving personnel, if they are told by their superiors that they are not able to do something, they will accept that. It is only when they find out years later that, actually, they do have a valid claim and they are able to pursue it, they will be able to take action, but with this six-year limit, that is problematic.

We very much welcome Lords amendment 4, but it does not go far enough. As has already been mentioned, it in effect creates an unfair two-tier system in which MOD civilian employees, or indeed the families of deceased personnel, will not be able to make claims beyond the six-year limit. So we will be supporting the amendment, but it is disappointing that it only applies to members of the armed forces.

The Government had the opportunity to strengthen Lords amendment 4 by widening it to apply to all, but instead they are rejecting it entirely so that everyone has the time limit applied. We have heard about those with hearing loss, and again I spoke in Committee about an individual whose significant hearing loss could not be pinpointed to one event and had got progressively worse. Certainly, the six-year limit would have caused problems for that individual to pursue a claim, as it would for claims relating to post-traumatic stress disorder, because that can manifest itself very differently in different people and it may be many years later.

I know the time limit is supposed to be from the point of diagnosis, not from the point of first symptoms, but even at the point of diagnosis the link would still need to be made to service, and if that was not done in a timely way, it would prevent further progress of a claim. Another such issue I have spoken about is that of the nuclear test veterans, who 60 or 70 years on are still looking for stuff, but they would be prevented from making any claims under this. It is notable that we should be making it easier for our personnel to make claims against the MOD when the MOD is seen to be negligent, but as has already been said, this legislation seems to be crafted specially to protect the MOD, not the personnel themselves. We should all be quite concerned about that, so we will be supporting Lords amendment 4 today.

Finally, on Lord Dannatt’s amendment—Lords amendment 5—which ensures care and support for personnel involved in investigations, I cannot see why every Member of this place should not be supporting it. I know the Minister has spoken about the reasons why the Government are not supporting this, but if all these structures are in place just now, why do we still have personnel who are not getting that support at the moment? If that support is already there and is not working, then we do need something, and if it has to be statutory, then it should be statutory.

I will finish my comments by saying that I hope, with the change of Minister, that we do see a change of attitude. I know it will surprise Government Members, but occasionally Opposition Members may have points that are worth consideration. We are not always out to get you, although I will not be putting that on social media. I think there has to be an acknowledgment and a recognition of the experience that Members across the House can bring to legislation, particularly legislation such as this. I will, finally, just thank the Minister for his input today, and we certainly look forward to working with him in the future.

Armed Forces Bill (Second sitting)

Debate between Carol Monaghan and Kevan Jones

Wednesday 31st March 2021 Public Bill Committees

[Mr Jones]

I rise to support this new clause because, as my hon. Friend the Member for Portsmouth South has outlined, promises have been broken not just by this Government but since 2010. In the run-up to the 2010 general election, the Conservative party argued for a larger defence budget, an increase in numbers, more equipment, and a commitment to the armed forces of our country. Since then, we have not just seen the size of the Army reduced; we have seen cuts in numbers in the Royal Navy, including the Royal Marines, and in the Royal Air Force. Under the coalition, we had the terrible situation where brave members of our armed forces were made compulsorily redundant—again, something that was never promised in 2010. Certainly, if a Labour Government had implemented that policy, Members on the Tory Benches would have opposed it and would have been highly critical of the Government for doing so.

The overall size of our armed forces does matter, not only in terms of the Army being able to deploy individuals but to ensure that, for example, the Royal Navy has enough personnel to put ships to sea. We can have as much equipment as we want, but if we do not have the individual servicemen and servicewomen to support that equipment, it is useless. In the past few years, we have seen naval ships tied up because of a lack of trained strength, so it is important that we have this report annually and also that it talks about trained strength, because the Government do play fast and loose with the numbers.

It is not just a matter of the overall size, but what the overall capability is and how many members of the armed forces can actually deploy. There has been a decade of decline in the UK’s armed forces, and although the Minister and others champion the idea that they are supporting members of the armed forces, they have been part of a Government that have not only cut pay—as we have already spoken about this morning—but cut the actual numbers of the armed forces.

Another aspect I would like to raise is the lack of opportunity this will mean for many young people in constituencies such as mine, who proudly join the armed services to not only serve their country, but ensure they can have a career that they can be proud of and take those skills back into civilian life. The cuts will have an impact in constituencies across the country that provide men and women for the armed forces, because there will be a lack of opportunities. A lot of negative things are said about service in the armed forces, but I see service as a positive thing, where the people joining not only contribute to the safety that we all take for granted but, more importantly, get great career opportunities and opportunities that they would never have in civilian life. Once they leave, that expertise helps those individuals, and also helps local communities such as mine in North Durham. These cuts will limit the opportunities for those people, which saddens me, and is something we should bear in mind.

[Carol Monaghan]

I want to say a few words in support of this new clause. Again, it should be really straightforward. I cannot see any reason why the Government would oppose it; it simply asks for a report on numbers.

Both Members who have already spoken to this new clause have talked about the impact of reduced numbers. We must be clear that despite moves towards cyber-warfare and different types of platform, ultimately reduced numbers threatens our capability. When we are looking at operating in very difficult circumstances, the Government should take seriously any threat to our capability.

We must also think about the impact on the remaining personnel, because the burden on them increases as the numbers decrease, with fewer personnel having to do more. That has an impact on their lives, including their family life and interactions with those outside the military. It can also threaten their ability to take leave; it will be a serious issue if they have leave entitlement but are not able to take leave because there are insufficient personnel to cover. People cannot continue like that; perhaps they can for short periods, but not over months and certainly not over years or indeed their entire service. We need to think carefully about this.

To make a general point, I am concerned that we are in a Bill Committee and we are supposed to be discussing new clauses and amendments, with the Government looking at adopting those that are considered reasonable, but it seems to me at the moment that they have not taken on board a single one. That calls into question what we are all doing on a Wednesday morning participating in such a Committee. So I seek some advice on this from the Chair: surely the Government should seriously consider new clauses and amendments, particularly where there is consensus.

Armed Forces Bill (First sitting)

Debate between Carol Monaghan and Kevan Jones

Thursday 25th March 2021 Public Bill Committees

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

I wish to speak in support of the amendment. The issue was quite clearly looked at by Judge Lyons in his report. As has just been said, there is no rationale for why other rank 7 was seen as a particularly relevant cut-off point. The important thing is that we make the move to mirror the civilian justice system, although I certainly accept that there are differences between the two because of operational issues.

To be judged by one’s peers is a fundamental right. The provision would exclude large numbers of individuals, including some who may have many years of experience in the armed forces and of sitting on courts martial. I do not think that a good enough reason for excluding those individuals has been put forward in evidence. One possible justification was that people would not understand the procedures. Well, I find that rather patronising for non-commissioned officers, some of whom have been in the armed forces for many years. I would draw a parallel with civilian courts, where there is no qualification process or aptitude test for sitting on a civilian jury. It is for them to weigh up the evidence.

I think that Judge Lyons was basically saying in his report that the movement he outlined was all that he could get away with in the military legal system. I think that he was pushing for further change, but quite clearly did not want to offend or cause things not to go further. I think that he certainly saw this as a step towards, possibly, allowing other ranks to sit on courts martial.

The important point is to ensure that the individuals being tried feel that they get a fair hearing. In the hierarchical way that courts martial are judged at the moment, individuals might not perceive the process as fair because they are judged by more senior officers who determine promotion and other prospects for lower ranks, and might not only have limited understanding of the individual’s life experience, but could ultimately influence the outcome of the individual’s career, for example. I do not think a good enough reason has been put forward for why this cannot be extended, and I therefore support the amendment.

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

I will say just a couple of words in support of my colleague’s amendment. The Bill should be seen as an opportunity to modernise and to introduce some fairness—or perceived fairness—into service justice.

To include the NCOs and lower ranks is a step towards a more equitable method of delivering service justice, and how that is viewed by personnel is important. It is important that those sitting on a court martial board understand the experience of the people before them. Unfortunately, the experiences of commissioned and non-commissioned personnel can often be quite different. This is a real chance to build greater fairness, and perceived fairness, into the system. I urge the Government to consider the amendment carefully.

--- Later in debate ---

[Mr Jones]

May I begin by thanking Justice Lyons for his review? In his evidence to the Committee, he clearly outlined why amendment 19 is needed. I am a veteran of the 2006 Bill Committee, and it is quite clear, as Judge Lyons said in evidence, that when this amendment was made to that Bill, the intention was not for the wholesale movement towards serious crimes being heard in courts martial in the UK. They were for exceptional circumstances in which, for example, one crime had been committed overseas and one in the UK, given the ability of the court martial to deal with such cases. That was a sensible way forward because the service police would clearly be the lead authority in the investigation of such serious crimes committed abroad as murder, rape or manslaughter,.

The problem, which my hon. Friend the Member for Washington and Sunderland West outlined eloquently, is to do with confidence in the system. When the system was outlined, I do not think courts martial were meant to deal with these serious crimes. I support the military justice system, and I do not think the amendment would do anything to damage it. I think it would boost confidence in it.

The problem with the current system has been outlined. The conviction rate for rape is not satisfactory—I accept there are problems not just in the military system but in civilian life as well—and one of the key issues is investigation. The Minister said he was confident that the service police have the capacity to investigate such serious crimes. I would not want to criticise professional individuals, but, as with anything, the more specialism someone has and the more cases they deal with, the more expertise they get in gathering evidence and in supporting victims.

Clearly, the service police deal with a limited number of serious cases, so I would have thought that, when such alleged crimes are committed in the UK, it would be important to involve the local civilian police, who deal with serious sexual assaults, rapes, manslaughter and murder more often. Because of that experience not only in gathering evidence but in dealing with victims, they should have primacy. I am old enough to remember the Deepcut inquiry undertaken by Lord Justice Blake and know those cases in detail. I accept that is going back a number of years, but the clear problem there was the way in which evidence was not gathered—in some cases it was ignored or destroyed—and the assumption, without rigorous investigation, that suicide was the main cause of death in all cases.

The amendment is really about the system’s integrity and getting confidence for victims as well. As we saw in evidence from Forward Assist and retired Lieutenant Colonel Diane Allen, there is an issue in ensuring that, first, those who complain think they will be listened to as victims, and secondly, the armed forces’ hierarchical structure is not an impediment to the proper investigation of serious accusations. I can see the reason for courts martial dealing with cases in exceptional circumstances, as outlined in the 2006 Act, such as those that take place overseas and in this country, but I cannot see why routine cases in the UK are not dealt with by the civilian courts. I therefore support the amendment.

The Minister said it is a policy decision, but I am not sure. The intention was there, and I do not think much has changed in the past 15 years. What we need to do now is to ensure that, as was outlined in evidence we heard from the Victims’ Commissioner and other witnesses, the victim is at the centre of any system we put in place.

[Carol Monaghan]

I will say a few words in support of the amendment. The Defence Sub-Committee has been taking evidence on the experience of women in the armed forces. We know there are a whole range of issues specific to female personnel. When we are looking at serious crimes such as rape, so many different issues have to be considered —we need to consider consent and whether there is a proper reporting structure—and those who make complaints must have confidence in the system.

We have already discussed the membership of the court martial board. How can someone have confidence in a trial when those who are deciding the outcomes are likely to be male and of higher ranks, and not likely to have any understanding of the woman or the victim’s experience? In other words, they will not have anything in common with the person who is bringing forward the complaint.

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

Debate between Carol Monaghan and Kevan Jones

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.

--- 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—

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

Debate between Carol Monaghan and Kevan Jones

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

[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]

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 (Fourth sitting)

Debate between Carol Monaghan and Kevan Jones

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

[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 (Fourth sitting)

Debate between Carol Monaghan and Kevan Jones

Thursday 8th October 2020 Public Bill Committees

[Carol Monaghan]

[Mr Jones]

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

Debate between Carol Monaghan and Kevan Jones

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.

--- Later in debate ---

[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.

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

Debate between Carol Monaghan and Kevan Jones

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

[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.