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

Emma Lewell-Buck Excerpts

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

One of the arguments put forward by the Ministry of Defence and Ministers is that only very small numbers are affected. New clause 9 would be a way of looking at the actual effect on access to justice. On the numbers, I think 94% has been quoted for those on time. This comes back to what I said this morning: yes, we are talking about small numbers, but if that number is 94%, that means 6% of veterans and armed forces personnel will not be covered and will be disadvantaged. I accept that in the Minister’s exchange there was some contention about what the actual numbers are, but for me—I make this clear to the Committee—one serviceman or woman or veteran who is denied justice by this Bill is one serviceman or woman or veteran too many.

[Mrs Emma Lewell-Buck (South Shields) (Lab)]

On that point about the exchange between the Minister and the Committee, and the evidence sessions, is my right hon. Friend aware that the figure of 94% was based on an extrapolation of a sample of cases, and not on all post-six-year cases?

[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.

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[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.

[Liz Twist (Blaydon) (Lab)]

I, too, will not occupy too much of the Committee’s time, but I want to raise the issue of the impact on the ability of veterans and serving personnel to bring claims.

Yesterday, additional written evidence was circulated to us from a number of people, including Dr Jonathan Morgan of the University of Cambridge, in document OOB09, which refers to the impact of part 2 of the Bill on the ability of people to bring a claim; their rights will be restricted.

We also had evidence yesterday from Professor James Sweeney; I am afraid I do not have the reference number. He clearly points out deficiencies, and tackles head on, in paragraph 11 of his evidence, the Minister’s assertions that we are reading the provisions incorrectly. I ask the Minister and his advisers to look at that closely. We had evidence from the Association of Personal Injury Lawyers, too. We have heard comments about people’s views on personal injury lawyers and in whose interests thing are, but to me that evidence is clear and well set out.

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[Johnny Mercer]

It does matter. Facts do matter in this debate; figures do, too.

[Mrs Lewell-Buck]

Where can we find the figures that the Minister is quoting to us?

[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.

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[Johnny Mercer]

We are talking about overseas operations, wherever they take place outside the UK. UK operations and operations outside the UK are defined in the Bill.

[Mrs Lewell-Buck]

I think the Minister is falling foul of something that a lot of witnesses in the oral session said he would: he is confusing the criminal law with the civil law. Largely, our concerns around part 2 are about the civil aspect.

[Johnny Mercer]

What is being confused here is the difference between tort and human rights claims; that was being confused a lot in the comments made just now. Regarding the evidence sessions, I accept that there are aspects of this legislation that some of the people who came in—public interest lawyers, the Association of Personal Injury Lawyers, Hilary Meredith and others—do not like. I do not dispute that for a minute, but my job is to protect those who serve on operations from all those different threats, including lawfare, which has not been done before. Other nations do it, and we have a duty to protect these people as well.

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[Stephen Morgan]

I give way to my hon. Friend the Member for South Shields.

[Mrs Lewell-Buck]

I am looking at the transcript of the evidence given by the Royal British Legion, in which it said:

“‘Can we achieve those aims without disadvantaging service personnel?’ If we can do both, both should be done.”––[Official Report, Overseas Operations (Service Personnel and Veterans) Public Bill Committee, 8 October 2020; c. 89, Q168.]

It welcomed the intent behind the Bill and believed that it could “be improved.” No Labour Member is against the Bill per se; we are against part 2. We are trying to improve the Bill as the Royal British Legion suggested. I do not understand why the Minister does not grasp that.

[Stephen Morgan]

I thank my hon. Friend for the intervention. She hits the nail on the head: we want to work constructively with the Government to get the Bill right. Sadly, we are not seeing that engagement, and that concerns us. Are Ministers not concerned that the very Bill they claim is devised to help our armed forces is said to be doing the very opposite by an organisation as distinguished as the Royal British Legion?

We heard from other important witnesses. The Association of Personal Injury Lawyers, a not-for-profit organisation representing injured serving and ex-service personnel, said:

“This Bill leaves our veterans with less rights than prisoners.”

I will repeat that because it is so important:

“This Bill leaves our veterans with less rights than prisoners.”

That is a damning verdict delivered by lawyers who devote their lives to representing our troops. Our armed forces serve the nation with distinction. They deserve more than to have their rights stripped away.

I say to the Minister: do not dismiss the warnings of the legion and APIL; work with us to address them.

Let us take a closer look at what part 2 means. The Limitation Act 1980 results in the armed forces community and civilians being treated equally in seeking a claim for personal injury. A three-year cut-off point is in place. The courts retain the right to grant an extension to forces personnel. Section 33 provides the court with discretion to override the current three-year limit, but this Bill deliberately snatches courts’ ability to show discretion if the case relates to an overseas armed forces action. It makes a deliberate change to the Limitation Act. That makes no sense. There are already structures in place to ensure that only appropriate claims are brought. Courts routinely manage out-of-time proceedings and frequently throw out cases where delay is unjustified. The detailed criteria set out in the Limitation Act 1980 already address cases that do not have reasonable grounds or are unjustified. Why is the Minister actively removing an aspect of the Limitation Act that offers courts the right to grant an extension in cases relating to armed forces personnel?

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[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.

[Mrs Lewell-Buck]

On a point of order, Mr Mundell. The Minister keeps repeating something that is blatantly incorrect. No one at all on the Opposition Benches has compared prisoners to veterans or our armed forces. We have said that in the Bill the rights of veterans and members of our forces are less than those of prisoners. That is an important distinction and I ask the Minister to be correct when he makes accusations.

[The Chair]

I do not think that that is a point of order, but at least you have got your point on the record.

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[Mr Jones]

No, because some of those cases, especially with vibration white finger, were taken on limitation hearings, because those things happened a long time ago. That is the fundamental right. To protect the veterans or servicemen and women, they need the right to go to the law, if they wish to—not everyone does and I respect people who do not.

The best example—it is a tragic example—which came up in the evidence session was the Snatch Land Rovers. The events in which people were killed and injured took place in Iraq. Although it was an issue in the MOD when I was there, in terms of the suitability of the vehicles, the real focus on it never came until July 2016 and the Chilcot report. The case that was mentioned in the evidence session was in 2005. A serviceman was killed in a Snatch Land Rover, but his widow did not really know the significance of the vehicle until the Chilcot report in July 2016. At that time, she thought that there had been a failing on behalf of the MOD in its duty care and in the provision of that equipment, so she brought a claim for the loss of her husband, not under civil law but under the Human Rights Act on the basis that her husband had a right to life.

That case was clearly time-limited, because the event took place in 2005 but the case was not brought until after the Chilcot inquiry in 2016. Obviously, a limitation hearing was held and it was successfully argued that the case should go forward, and it was settled, along with—I understand—other cases.

If the Bill goes through unamended, that case would not have been able to go forward, because—I mean, if it was left to me and the Minister, we would both agree that the date of knowledge should have been 2016, and therefore it could go ahead. However, I am not sure that the MOD lawyers would be as generous to veterans as the Minister and I would be. That is the problem when the Minister argues that the date of knowledge somehow protects veterans: it does not. The date of knowledge should not be used as argument to throw such cases out straightaway.

What will that take? If the Bill goes through as planned—especially on the human rights side, there will be a court case and an argument will be made. Let us say that a case similar to the one that I just mentioned was active today in the courts. What will happen is that someone will challenge that. So we will get litigation as a result of that process on whether the Bill is compatible with the Human Rights Act. I accept that the Minister will write to me on these issues, but we will get more litigation than we would if we instead said, “Let us have a judge look at the limitations on whether a case should be brought”, and if the case is deemed to be special circumstances, it should go to trial.

We must recognise that the MOD acts no differently to the insurance companies that I used to deal with when I took personal injury cases and industrial injury cases against employers, and I am sure that the hon. Member for Darlington knows this as well. It is horse trading. If there is a limitations hearing, what someone will do is to try and get it settled—nine times out of 10, an offer will be made. It is only the ones who really want to be stubborn who take the matter all the way through to trial. Very few of those cases go to trial, because people look at the evidence, to see whether it is worth going further in court, and the case is settled.

However, that process will be closed down for the individual if this tight six-year time stop goes ahead. The cases will not get to the second stage after the limitation hearing, which is about negotiating with the other side to say, “Well, come on. Can we make an offer?” It is a difficult judgment call. It is a bit like a game show—take the prize or play on—and I am sure the hon. Member for Darlington has had many sleepless nights about what is being offered. In most cases, there is an agreement and the individual making the claim is content with what is offered. Some will want their day in court, but that is not always a good idea.

What the Minister said about nuclear test veterans was interesting. I accept the point about operations—the MOD loves to give things “operation” names—but in that case, which is one I know well, and I know the medical evidence, having read it as a Minister, the Government argued in 2009 that it was time-limited. In terms of overseas operations, it was overseas.

[Mrs Lewell-Buck]

The Minister said that nuclear veterans would not be classed as having been on overseas operations under the Bill, yet as I read clause 1(6), which defines what “overseas operations” are, my understanding is that nuclear veterans would be included.

[Mr Jones]

The Minister says not. It will be interesting to see whether we can have definite clarification. That case was taken against the MOD in the mid-2000s for events that took place in the 1950s and 1960s, so it was clearly time-expired by anyone’s standards.

I am not arguing that we should not have time limits, which are there for very good reasons, but there need to be exceptions to allow for people who fall outside them. In that case in 2009, the MOD refused the case based on time limits, but it went before Judge Foskett who ruled that it should go forward because of new evidence from a study in New Zealand—I am racking my brains for what the study was, as I read the huge scientific document at the time. Subsequently, it failed, which shows that getting past the Limitation Act does not mean that a case is somehow a dead-cert. The facts of the case must still be argued in court and can be resisted, as they were in this case. However, people were given a right.

If that work had been classed as an overseas operation under the Bill, those people would not have had any right to get their day before a judge to argue the case. That could apply to other similar group litigation—there is such litigation from more than one person or a number of individuals—or to individuals. We have been dancing on the head of a pin about the numbers, with the Minister saying that 94% of cases are brought within time. That is fine, and I have no problem with that, but that leaves 6% that are not. If that affects one person, as I said, that is one person too many. With that brief contribution, I commend the amendment to the Committee.