British Overseas Troops: Civil Liability Claims

Johnny Mercer Excerpts

Thursday 16th July 2020 Commons Chamber

[John Healey (Wentworth and Dearne) (Lab)]

(Urgent Question): To ask the Secretary of State for Defence to update the House on the overseas operations Bill’s impact on the rights of British troops serving overseas to bring civil liability claims against the Ministry of Defence and its implications for the Armed Forces Covenant.

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

We have introduced the Overseas Operations (Service Personnel and Veterans) Bill to lance the boil of lawfare and to protect our people from the relentless cycle of reinvestigations against our armed forces. Let me be absolutely clear: none of the measures will prevent the Ministry of Defence from being held to account for any wrongdoing.

To allay any further misunderstanding, let me provide some context. The Bill takes account of the uniquely challenging circumstances of overseas operations. It reassures our personnel that they will not be called on endlessly to defend against historic claims. It does that by introducing what we are calling a longstop. This restricts to an absolute maximum of six years the time limit for bringing civil claims or Human Rights Act claims for personal injury or death in connection with overseas operations.

It is simply wrong to assert that the Bill prevents service personnel, veterans or their relatives from bringing claims, because it does not change how the time limit is calculated. That will continue to be determined from either the date of the incident or date of knowledge. Conditions like post-traumatic stress disorder may not be diagnosed until much later, so the six years would start from the date of diagnosis.

The spirit of the armed forces covenant runs right through the legislation. Fairness is at its heart. We want to ensure that all claims are assessed fairly to achieve a fair outcome, yes, for veterans, but also for victims, service personnel and the taxpayer.

Yes, service personnel and veterans will still be able to bring claims against the MOD for such conditions, even if they are more than six years from the date of the incident. But also yes, this Government are going to war against lawfare. The days of veterans living in a persistent state of worry simply for having served this nation are coming to an end. Under this Prime Minister and under this Government, we will restore fairness to the process.

[John Healey]

This urgent question, with the summer recess next week, is the only way of getting Ministers to set the record straight and reassure veterans who have won claims against the MOD after knowing about their PTSD or their hearing loss for years, who rightly feel and fear this Bill will block their comrades from such compensation in future. We also want to protect serving and former troops against the Minister’s relentless cycle of vexatious legal claims or repeat investigations. I say to him that the Government have got important parts of this Bill badly wrong.

I asked the Minister on 6 July why he is legislating to reduce the rights of our armed forces personnel who serve overseas to bring civil claims against the Ministry of Defence if they miss this hard six-year deadline or his longstop. He told the House:

“The Bill does not do that.”—[Official Report, 6 July 2020; Vol. 678, c. 646.]

But of course it does, in clause 11. One week later, his written answer to me confirmed that 70 of 522 such settled claims have been

“brought more than six years after the…incident.”

So he has got the chance to correct the record today.

Why is the Minister legislating to deny those who put their lives on the line for our country overseas the same employer liability rights as the UK civilians they defend? Why are the Government breaching their own armed forces covenant by disadvantaging these troops, and why was the most senior military lawyer, the Judge Advocate General, not consulted on the drafting of the Bill? Is this the reason that Judge Blackett rightly says the Bill is “ill-conceived” and likely to increase prosecutions of UK service personnel in the International Criminal Court?

It is not too late to think again about the best way to protect service personnel from vexatious litigation while ensuring also that those who commit serious crimes during operations are prosecuted and punished appropriately. We are ready to assist, but Ministers have got to get a grip and they have got to get down to some serious work over the summer.

[Johnny Mercer]

I am grateful to the right hon. Member for his interest in the Bill. I would ask him to consider for a moment, given the history I have in this place, if I would attempt in any way to restrict the rights of service personnel to sue the Ministry of Defence or to claim for compensation after the event. I have read the Bill because I wrote the Bill, and the Bill very clearly states that it is from the point of knowledge or the point of diagnosis that that limitation comes in. We have always had limitations in this country. In the Limitation Act 1980, for example, there are limitations on various claims that are made through the tort system through the courts.

The reality is that introducing this legislation is not going to please everyone, because throughout the legal system that has thoroughly abused this process for many years, an awful lot of money has been made and the lives of our service personnel and veterans have been at the bottom of the priority list. Well, I am afraid that is changing, so I have no qualms at all that some people will disagree with elements of the Bill. But one thing that is beyond debate is that this is enhancing the quality of life and this nation’s responsibility to its service people and veterans; it is not going in the other direction. If there is any genuine concern out there from any individual who can show me that this will inhibit their rights, I am more than happy to look at it. But the issue around limitation is, I am afraid, misunderstood, because it is not from the point of when the injury happened or the incident that caused the injury; it is from the point of awareness or the point of diagnosis. The Bill does not change that. As far as I am concerned, it enhances the armed forces covenant. This will be a good thing, and a tool in our efforts to lance the boil of lawfare in this country.

[Marco Longhi (Dudley North) (Con)]

As someone who chaired the armed forces covenant in the Black Country for a year, I am proud to be part of a Government who are taking veterans in Dudley and across the country seriously, listening to them and giving them the support they need. Will my hon. Friend reassure me that these changes will ensure that our troops and veterans are protected from unfair and persistent pursuit?

[Johnny Mercer]

The objective of this Bill is very clear. It is to restore fairness in the system for veterans, service personnel and victims, for whom this process has not worked for many years. I am afraid that veterans and their families have not been considered in a lot of these processes, and some of their experiences have been totally unacceptable. This Government were elected to change this nation’s relationship with our veterans. I am very proud that we are doing that now, and the whole House should be supportive of what we are trying to do to get this right.

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

I congratulate the right hon. Member for Wentworth and Dearne (John Healey) on securing this urgent question. I start by declaring my interest, as my husband is a veteran.

The Government are not short on rhetoric on the importance of our armed forces, but as usual the rhetoric does not match the reality. Part 2 of the Bill is yet another attack on our personnel and veterans. Those who have risked their lives in the service of our country will now have a limited period in which to pursue a claim. I know that the Minister said this morning that the six-year limit is from the point of diagnosis, but the culture in the military means that some personnel are told that they are unable to pursue a claim while they are serving, or told by those higher up the chain of command that they do not have a valid claim. Given that many conditions, such as deafness, asbestos poisoning and the impact of radiation exposure, can get worse over the years, what protections will be in place to enable such personnel to pursue their claims? According to the Government, the rationale for these proposals is that they will be beneficial to our armed forces personnel and veterans, so will the Minister give us some real evidence and examples of how personnel and veterans will benefit from this limit?

It is also unacceptable for the Government to introduce the Bill before publishing a formal response to their consultation, so when will that response be published? Why was an impact assessment not published alongside the Bill? The Government seem to be taking advantage of the fact that they are unique in their ability to legislate to restrict legal claims against them. Is it not in fact the case that, under the guise of benefiting service personnel and veterans, the Government are simply saving money from legal claims at the expense of injured veterans?

[Johnny Mercer]

I hope you will forgive me, Mr Speaker. I have an enormous amount of respect for many of my colleagues, but I have never heard such a load of rubbish in all my life. This Government have done more than any before them to improve the lot of veterans in this country, bar none.

[Mr Toby Perkins (Chesterfield) (Lab)]

What about the questions?

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[Johnny Mercer]

I am answering the question—[Interruption.] Yes, I am answering the question. When it comes to the Bill, if the hon. Member for Glasgow North West (Carol Monaghan) has genuine concerns about how the rhetoric differs from this Government’s actions, I would ask her to look at some of the things we have done prior to the Bill, including establishing the Office for Veterans’ Affairs and the forces railcard, getting the census question in, and ensuring a guaranteed job for those in the civil service. The Government have fundamentally shifted the dial on this. Having written the Bill myself, I totally reject the idea that it reduces soldiers’ ability to make claims. For example, on the radiation question, the claim starts when the condition is diagnosed, as is the case with all other claims in this area.

It is worth saying how the Bill will change people’s lives. Had it been brought in prior to 2003, there would have been a 72% drop in the thousands of claims that were brought against service personnel in this country, of which none—none—were referred to prosecution. I urge hon. Members who are quick to champion and extol the values of veterans to shift from that, do something about it for once, and support the Bill.

[Bob Blackman (Harrow East) (Con) [V]]

I thank the Minister for not only his answers, but his dedication to improving the lives of service personnel in our country. I am grateful that the Government are committed to improving the lives of our armed forces personnel. Does he agree that it is our duty to end the unfair trials of service personnel who have served their country and our country?

[Johnny Mercer]

I agree wholeheartedly with my hon. Friend. That has been an injustice for many years. I often thought to myself, before I came to this place, how has that process been allowed to continue where those who serve this country on operations are treated like that afterwards?

It is clear to me that in this place, we are good at saying, “Aren’t our veterans brilliant? Don’t we owe them a huge debt?”, but when it comes to doing something about it—something a bit difficult and challenging—everybody runs for the hills. Well, this Government are not going to do that. We are going to legislate to protect those people from those who want to rewrite history to line their own pockets. Those days are over. I fully expect all hon. Members to support that effort.

[Andrew Gwynne (Denton and Reddish) (Lab) [V]]

I agree with the Minister’s intention to remove the ability to bring vexatious claims against our military personnel, which is why we have to get the detail of the Bill right and consider any possible unforeseen consequences of getting it wrong. Does he accept that there are often good and perfectly reasonable reasons why a soldier or veteran may not be able to bring a claim within six years, even if they knew about their injuries? How can we factor that in?

[Johnny Mercer]

I thank the hon. Gentleman for that constructive point. Let me be clear: I am absolutely happy to amend the legislation on the suggestion of any hon. Member to get it right, but it has to be based on fact and reality. The armed forces compensation scheme has a seven-year limit on it anyway. The Limitation Act 1980 also limits the time in which claims can be brought. If hon. Members want to discuss that more widely, clearly that is a broader issue. All we are doing is bringing into line our military personnel and veterans’ experiences.

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, then choose to do something about it much later. 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, but that is not what experience shows us. I urge hon. Members to come up with constructive criticism and debate, so that we can really work on the Bill to get it right, because we all agree that we need to do it.

[Dr Andrew Murrison (South West Wiltshire) (Con)]

I welcome the spirit of the Bill. To congratulate the Minister, I will send him a copy of my book, “Tommy This an’ Tommy That: The military covenant”. He has done well to bring it thus far, but it is tipped to be heavily amended as it progresses through this place, not least because of Judge Jeff Blackett’s remarks. I press the Minister to look again at part 2, because it seems to me that the “no disadvantage” enjoinder within the military covenant is in danger of being overlooked. I know that he would not want to see that.

[Johnny Mercer]

I am more than happy to look at any part of the Bill, but as I am also bringing in legislation to make the armed forces covenant law and make it actually mean something, it would be quite bizarre for me to bring in another Bill that reduced it. I will, of course, look at that, but I do not accept that the Bill brings any disadvantage to those who have served.

[Patrick Grady (Glasgow North) (SNP)]

Will the Minister explain the rationale for six years rather than five years or, indeed, seven years, which he said was the time limit for one of the other claims? Given that these important issues obviously need independent oversight, does he think there is a role for the Intelligence and Security Committee to have that oversight?

[Johnny Mercer]

It is not for me to say what Committees should do. In terms of the timeframe, all this does is bring it into line with other HRA claims that can be brought forward at the moment. There is no finger in the air—“This is what we’re going to go for.” At the three-year point, courts will now have to consider special provisions that will have to be exceptional for a prosecutor to bring a claim, which brings this into line with other human rights legislation.

[Tom Tugendhat (Tonbridge and Malling) (Con)]

The first time I met my hon. Friend the Minister, in Kandahar, Afghanistan, both of us had somewhat smaller bellies and somewhat shorter hair. The lesson that we learnt out there about looking after the guys and girls we served with was an important one. Can he explain to the House what fundamental change this will make to ensure that their lives are better and that their families are not disrupted?

[Johnny Mercer]

That is a really good question, and I thank my hon. Friend for it. The way that this is going to change lives is by ending the uncertainty. If you have served on operations and you have not committed an offence, you will not be endlessly hounded by those who seek to bring spurious human rights claims. Let us remember how the IHAT process started. We had Public Interest Lawyers driving around Iraq, essentially acting as legal team for the Mahdi army—it was absolutely bizarre. This will change the experience for service personnel, veterans and their families and provide certainty for them and for victims, to clear this mess up and restore fairness to the process.

[Mr Alistair Carmichael (Orkney and Shetland) (LD)]

It should be possible to build an easy consensus in the House on protection for those who have given service in the past, but the Bill that the Minister claims to have drafted himself does a lot more than that. A prescription and limitation on actions brought in respect of torture, crimes against humanity and war crimes is a significant departure on which he will not build a consensus and for which those who give service in our armed forces would not want people to be protected. Will he look again at that provision?

[Johnny Mercer]

I am happy to look at any aspect of the Bill, but let me be clear: the retrospective application of the Human Rights Act to the battlefield is inappropriate and has caused a lot of the problems that we have had. We want to restore the supremacy of the law of armed conflict in the Geneva conventions. We do a good job of holding our people to account. We are not going to allow the legislation that the right hon. Gentleman mentions to be abused and used in a way that it was never designed to be used in order to bring claims against our service personnel and make their lives a misery.

[James Sunderland (Bracknell) (Con)]

The rules of engagement for overseas land operations are covered by what is known as Card Alpha. Could the Minister reassure the House that soldiers who pull the trigger in accordance with Card Alpha or its tri-service equivalent can get on with their lives, safe in the knowledge that they will never again be pursued by ambulance-chasing lawyers?

[Johnny Mercer]

For me, service in the military is very clear. You adhere to the law. If you break the law, you will be charged and prosecuted. If you do nothing wrong, you have nothing to worry about. You operate within the law of armed conflict. Those who are elected to this place to look after you will, from this point on, do their job and protect you.

[Jim Shannon (Strangford) (DUP)]

The Minister has stated that fairness is at the heart of this, and I thank him for that. Does he agree that soldiers who are injured or deployed internationally in service of Queen and country deserve the same route to civil satisfaction as the civil servants in Whitehall, who have no restrictions and no limitations on their civil liability claim ability?

[Johnny Mercer]

I believe that those who operate in our armed forces are entitled to the protection they deserve. This Bill protects them. That is why I struggle to understand the context, because this is all about protecting our servicemen and women from an abhorrent process that has ruined some of our finest people over the years. I am happy to look again at all aspects of the Bill, but I want to build a collegiate approach in this House to get the Bill through. We agree that this must happen—let us get it done.

[Stuart Anderson (Wolverhampton South West) (Con)]

As a Northern Ireland veteran who served during the troubles, it would be remiss of me not to say this: I am very grateful for everything my hon. Friend has done to get us to this point, but now that he is the Minister, will he apologise on behalf of the MOD for the decades of harassment that our troops and veterans have faced?

[Johnny Mercer]

Look, there is no doubt that the prominent protagonists in this have been human rights lawyers, who have abused that system in order to make money, abusing some of the poorest people in the world in the process. But what I would say is that, yes, there are elements that the MOD could and should have done better and for some of our people, those experiences have been unacceptable—and for those, yes, I do apologise.

[Mr Toby Perkins (Chesterfield) (Lab)]

The Minister now says that he is willing to relook at all aspects of the Bill, which is precisely what my right hon. Friend the Member for Wentworth and Dearne (John Healey) asked him to do half an hour ago. Across the House, there is an understanding about the desire to get away from these vexatious claims, but what Members on both sides are telling him is that there are unintended consequences from the way that the Bill is currently structured. He should listen to prevent veterans being penalised while he is trying to do something that we all support.

[Johnny Mercer]

Veterans are not being penalised. If they were, I would not bring this legislation in. I have not said that I am going to look at all aspects of the Bill; I have made it very clear that I am happy to discuss amendments and changes that people want to make to get the Bill through, but I will also not do it on the back of things that are patently untrue.

[Dr Luke Evans (Bosworth) (Con) [V]]

In my short time as MP for Bosworth, I have had veterans writing to me and coming to my surgery. They do not want to be above the law, but they do not want vexatious claims either, so these changes are well overdue. What will my hon. Friend do to make sure that the balance is preserved and that servicemen and women, both past and present, are of course held to account, but also protected?

[Johnny Mercer]

A huge part of my efforts in the MOD is about having a better system to hold our servicepeople to account. There is no doubt about it—if we had had better investigations in the first place, we would not be here, so there is a twin-track approach, trying to get the balance of fairness so that those who break the law are held to account, but ultimately, if people have done nothing wrong, they can live the rest of their life in peace.

[Stephanie Peacock (Barnsley East) (Lab)]

Can the Minister explain why British soldiers should have less recourse to compensation from their employer than the civilians they defend?

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[Johnny Mercer]

They do not. The armed forces compensation scheme is out there for everybody to read. It is a good scheme. It is constantly reviewed and it has come on leaps and bounds in the last 10 or 15 years. I am sure that there will be another review of it in the future, but I am afraid that the points that the hon. Lady makes are simply incorrect.

[Fay Jones (Brecon and Radnorshire) (Con)]

Brecon is a proud garrison town with a high concentration of infantry veterans. The Minister has met me a number of times to discuss my constituents’ concerns, so I have seen at first hand his commitment to righting the wrongs done to our veterans. Does he agree that the closure of Brecon barracks, erasing the history of the Army in Wales, would be another such wrong?

[Johnny Mercer]

The closure of barracks and the footprint of the military in this country is something that we take very seriously, but let me be clear that the defining issue in that will be the quality of life for our service personnel, and we will make sure that it is acceptable.

[Neil Gray (Airdrie and Shotts) (SNP) [V]]

The House should know that I have a brother who is a current Army officer and another brother who is a retired Army officer. I also have constituents who have waited years to have medical issues brought on by their service even recognised by the military, never mind the fight that they then have to get the correct support. Taking what the Minister has said about wanting to ensure that there is no disadvantage to veterans, will he outline how exactly he will guarantee that, and that the 60-year rule will not harm injured veterans, as there is great concern among them right now?

[Johnny Mercer]

Again, I wonder if anybody could show me how this legislation is going to genuinely make somebody’s life worse—the compensation claim starts when that illness or injury is recognised or is a point of knowledge. This does not affect that in any way.

[Bob Stewart (Beckenham) (Con)]

I endorse the question asked by my hon. Friend the Member for Wolverhampton South West (Stuart Anderson) and thank the Minister for his very clear answer, which is an apology for what has happened, fundamentally. I remind him that we still have the problem of veterans in Northern Ireland, but I will not linger on that. The only point I would like to make is that having listened to what people have said today, it seems to me that everyone in the House is up to sort out any little problem that might occur. We all want the best possible circumstances for our servicemen and women, either past or present, and for their conditions to be as good as they can be, and I think that my hon. Friend would agree with that.

[Johnny Mercer]

I completely agree with that, but we are not going to base policy on things that are simply incorrect. This has been an issue for 40 years because people have not wanted to tackle difficult matters. This Government are going to do that, and we will bring forward legislation in September.

[Robbie Moore (Keighley) (Con)]

We owe a great deal of gratitude to our serving armed personnel, and I was lucky enough to meet Luke Davison from Keighley who served in the Yorkshire Regiment. Does my hon. Friend agree that it is our duty, through this Bill, to ensure that we get the protections the armed services need when deployed?

[Johnny Mercer]

My hon. Friend is right. The Bill seeks to attain the balance between justice for victims and for veterans. We need to restore fairness to this process, and this Government are determined to do so.

[Mr Speaker]

That concludes the urgent question. It might be helpful for hon. Members to be aware that I will permit the Secretary of State for Health and Social Care to make an important statement providing an update on coronavirus at 5 pm today. Member Hub will be open shortly for Members who wish to take part, and it will close at 1 pm.

To allow the safe exit of hon. Members who have participated in this item of business, and the safe arrival of those who wish to participate in the next debate, I will now suspend the House for a few minutes.