Overseas Operations (Service Personnel and Veterans) Bill (Eighth sitting) Debate
Full Debate: Read Full DebateDepartment: Cabinet Office
Johnny Mercer
Main Page: Johnny Mercer (Conservative - Plymouth, Moor View)Department Debates - View all Johnny Mercer's debates with the Cabinet Office
Overseas Operations (Service Personnel and Veterans) Bill (Eighth sitting)
Johnny Mercer ExcerptsTuesday 20th October 2020
(4 years, 1 month ago)
Public Bill CommitteesRead Full debate Overseas Operations (Service Personnel and Veterans) Bill 2019-21 View all Overseas Operations (Service Personnel and Veterans) Bill 2019-21 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Public Bill Committee Amendments as at 20 October 2020 - (20 Oct 2020)
Liz Twist
My right hon. Friend is absolutely correct. That is why it is important that this part of the Bill be either substantially amended to protect the rights of veterans, or perhaps taken away altogether.
The Royal British Legion, talking about disadvantage under the Covenant, says:
“The Armed Forces Covenant states: ‘those who serve in the armed forces, whether regular or reserve, those who have served in the past, and their families should face no disadvantage compared to other citizens in the provision of public and commercial services…in accessing services, former members of the Armed Forces should expect the same level of support as any other citizen in society’”.
We all need to take very seriously the concerns raised by the Royal British Legion about claims and the breach of the armed forces covenant. I have no doubt that it is not the Minister’s intention to disadvantage people, but the Bill as drafted will do so. I ask him to look at this very seriously, and to consider amendments to the Bill.
The Minister for Defence People and Veterans (Johnny Mercer)
It is good to see you back in the Chair, Mr Mundell.
I appreciate the opportunity to address some of the points raised. My intention is not to disparage Members’ intentions, because I get it: people want to support our armed forces and do not want to disadvantage them. I do not want to disadvantage them. However, some things—the data is a good example—are being totally misused to promote these points. For example, on the statement that from 2014 to 2019 there were however many thousand claims, that number includes claims in the UK that people would bring under tort or civilian law against an employer. This Bill does not apply to that; it is called the Overseas Operations (Service Personnel and Veterans) Bill. In no way are those comparisons being made in a fair manner. This Bill applies only to those allegations and claims that affect our service personnel overseas.
Johnny Mercer
I will get to my point. There were 552 employer liability claims from what happened in Iraq and Afghanistan. Today’s Daily Mirror had sounded familiar to a couple of the speeches: it mentioned “21,000 claims”. It is total nonsense. That is the total number of claims that people have made against the MOD in the period from 2004 to 2017. They are claims in a civilian workplace environment, where there are civil liabilities claims, claims regarding exercises and so on in the UK, and breach of contract claims. In the Bill, we are talking specifically about overseas operations. Whoever is providing these figures is demonstrating a pretty basic misunderstanding of what is going on—or it is a deliberate attempt to mislead, but I am sure it is not. The two things are not comparable in any way.
Mr Jones
To me, that does not matter. Why should armed forces personnel be treated differently when something happens in this country, as opposed to overseas? It might not be in combat; it might be on a training mission, or something like that. As I said, if one veteran is disadvantaged, that is one veteran too many.
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.
Carol Monaghan
The Minister is talking about overseas operations. We all understand that, and that the Bill applies to those serving overseas. However, if my employer sends me overseas, and I suffer an injury there due to the negligence of my employer here in the UK, I can sue the employer for the injury. The same should be the case for veterans. It is not about whether it is overseas or here; it is about having the same rights as civilian employees.
Johnny Mercer
I disagree, and this is why. Operational service overseas is fundamentally different from life in the UK, and from what we ask our people to do. The hon. Lady is absolutely right: we have a duty in this country to protect those overseas, whether it is against improvised explosive devices, bombs, electronic warfare, or indeed legal systems used to bring warfare by another means. That is what this Bill is trying to do.
I understand the assertion that if someone from the Royal British Legion was deployed on an operation, the six-year limit comes down. Viewed on its own, that is something that will happen to serviceperson, but not a civilian. Disadvantage is a comparable term. Disadvantage to who? The Government argue—this I am clear on—that these people are seriously disadvantaged by having no legal protection against these thousands of claims that we have seen come in over the last 15 or 20 years. What the Royal British Legion would like us to do is to put that to one side—[Interruption.] No, it is, because I have engaged with it extensively. It would like us to apply that to one side of the argument, which, again, is not legal. Under European human rights law, people are being disadvantaged and discriminated against based on the claimant, which is not legal. This cannot be brought in on one side.
Mr Jones
The Minister is taking rights away from servicemen and women. He talked about overseas operations, but let us say, for example, someone is in British Army Training Unit Suffield in northern Canada on a training exercise. If that is classed as an overseas operation, or a peacekeeping operation—
Johnny Mercer
Because what the right hon. Gentleman says—I have a lot of respect for him—is simply not true. BATUS is not an operational environment. It is not a peacekeeping mission. It is a training unit mission. As I said this morning, and speaking from a point of knowledge, when it came out in the inquiry about the Snatch Land Rover cases, that is when the six-year thing started. That would not have been affected by this legislation.
We could keep raising these points, but I am not going to change my view, because it is based on the truth. I cannot suddenly say, “Yes, BATUS is a war-fighting operation, so this stuff applies.” I cannot say, “These people would be affected in the Snatch Land Rover case,” because that is simply not the case.
Johnny Mercer
I will come back to the right hon. Gentleman in a minute. He talks about taking rights away from our service personnel. They have a right to be protected on the battlefield in all these areas. One area where they have a right to be protected is the use of lawfare to progress, and change the outcome of, a conflict through other means.
There were lots of wild sentiments thrown around—“lawyers don’t make things up,” and all the rest of it. Again, that does not collide with reality. Phil Shiner has been struck off. The reality—the world as we find it—is what this Bill is designed to deal with.
Jack Lopresti
On a point of clarification, would a deployment in Cyprus or Estonia be covered by the Bill?
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.
Liz Twist
I can understand the Minister’s concerns about some of the comments, but the Royal British Legion exists to protect people who have served in the forces. That is one of their key aims. If they are saying to us that the provisions present an issue, is it not right that we take note of that, address it, and deal with it clearly?
Johnny Mercer
Absolutely; it is right to take note of it, and I have engaged with it extensively on this issue, but the legion does not own the covenant—nobody does. It belongs to the nation. The covenant was designed to ensure that when a service person and a civilian are in a comparable situation, the service person is at no disadvantage. It was never designed to ensure no disadvantage whatsoever. We send our people away from their families for six or seven months of a year—that is a disadvantage. We send them away to undertake dangerous work—that is a disadvantage.
The covenant was meant to mean that when two people are in the same situation, the service person is not disadvantaged, and that is why the Bill says that it applies to a civilian in these environments in exactly the same way. I heard the right hon. Member for North Durham say again this morning that civilians were not covered by this Bill. Well, they are. It is in the Bill.
Mr Jones
The Minister said these rights protect people, but the covenant is not about taking rights away from people. I know we fixate on the date of knowledge, but when he is no longer a Minister and none of us are here anymore, the Ministry of Defence lawyers will not use this provision to say that a case is time-barred. There is nothing in this Bill that says that. That is the problem he has. I do not for one minute think that he is suggesting otherwise, and he is perhaps well intentioned, but he is just wrong on this, and is trusting the MOD too much.
Johnny Mercer
I accept the right hon. Gentleman’s point. He will not find many Ministers who will say that half is the Department’s problem in terms of how it has investigated and so on. I have a healthy interrogation of any advice I am given. I accept his point that there is a danger of abuse, but we have written into the Bill that point of knowledge. I am not fixated on it; it is just there in black and white.
Johnny Mercer
I will come back to the right hon. Gentleman. I want to finish what I am saying—I do not want to repeat myself and bore everybody—and then I will take more interventions.
Clause 8, in conjunction with schedule 2, introduces new factors that the courts must consider when deciding whether to allow certain claims relating to overseas military operations to be brought after the normal time limit, and sets the maximum time limit for such claims at six years. The Government intend to ensure that claims for compensation for personal injuries or deaths arising from overseas military operations are assessed fairly and achieve a fair outcome for victims, for the service personnel and veterans called upon to give evidence, and for the taxpayer.
Section 2 of the Limitation Act 1980 sets an absolute time limit of six years for compensation in claims relating to most types of tort. Although sections 11 and 12 set a three-year limit for claims for personal injury or death, the three-year limit is not absolute. Section 33 of the Act gives the court discretion to allow claims to be brought beyond the time limit if it considers it fair to do so. Section 33 identifies six factors to which the court must have a particular regard when assessing fairness. In broad terms, those relate to the steps taken by the claimant to bring the claim, the reasons for delay and the effect of delay on the quality of the evidence. Those factors do not adequately recognise or reflect the uniquely challenging context of overseas military operations. The Government are concerned that unless the court is directed to consider relevant factors, it might wrongly conclude that it is fair to allow older claims to proceed. The clause, in conjunction with schedule 2, introduces three new factors that the Government consider properly reflect the operational context to which the court must have particular regard.
Mr Jones
Is it not for a lawyer, when they are arguing a limitations case, to make the case for special circumstances? They can do that now in law. If the measure goes through unamended—I accept that this is not the Minister’s intention—the MOD will use it as a way of blocking cases. We only have to look at the nuclear test veterans case of 2009 and Judge Foskett’s summing up. The MOD’s argument in the limitations hearing was that the case was out of time, but it was successfully argued that new evidence had come forward. That was possible because it was before a court of law. This measure stops that.
Johnny Mercer
I will address that point in my final remarks on the clause. The factors that have to be considered are the extent to which assessment of the claim will depend on the memories of service personnel and veterans, the impact of the operational context on their ability to recall the specific incident, and the impact of doing so on their mental health. The new factors reflect the reality of overseas military operations—the fact that opportunities to make detailed records at the time might be limited; that increased reliance might have to be placed on the memories of the personnel involved; and that as some of them might be suffering from mental health illnesses owing to their service, there is a human cost in doing so. The human cost obviously goes beyond that of the service person and will be felt just as much by their families and friends. Families of the military community are a core aspect of the armed forces covenant and must not be overlooked when we consider the measures in the Bill.
Clause 8, in conjunction with schedule 2, also introduces an absolute limit of six years for claims for personal injury or death arising from overseas military operations. This change brings the absolute time limit for personal injury or death claims in line with other claims for other torts that might occur on operations, such as false imprisonment. It also gives service personnel and veterans certainty that they will not be called upon indefinitely to recall often traumatic incidents that they have understandably sought to put behind them.
Finally, this clause, in conjunction with schedule 2, amends the Foreign Limitation Periods Act 1984, so that claimants cannot benefit from more generous time limits under foreign law. This change is needed for consistency and will ensure that no claim is brought after six years. I must emphasise that the Government are not seeking to stop meritorious claims or to avoid judicial scrutiny, nor are we seeking to put the armed forces or the Government generally in a more favourable position compared with their position as regards other defendants.
The changes that this clause and schedule 2 introduce go only as far as is necessary to ensure a fair outcome. They do not affect the way in which the time period is calculated or those provisions that suspend time in appropriate circumstances. They are also consistent with court rulings that claimants do not need to be provided with an indefinite opportunity to obtain a remedy. The courts have recognised that limitation periods have an important role to play in ensuring legal certainty and finality and in preventing injustice. The changes that this clause, in conjunction with schedule 2, introduces are a reasonable and proportionate solution to the problem of historical claims.
I will not repeat the same arguments for clauses 9 and 10, which amend the legislation in Scotland and Northern Ireland, but I will just add that the Limitation Act 1980 only covers claims brought in England and Wales. It is therefore necessary to extend similar provisions across the whole of the UK to prevent forum shopping. It would be deeply unsatisfactory if changes that the Government are introducing to achieve a fairer outcome in relation to claims brought in England and Wales could be circumvented by a claimant’s bringing their claim in Scotland or Northern Ireland instead.
Turning our attention to new clause 2, none of the measures in part 2 of the Bill will prevent service personnel, veterans or their families from bringing claims against the MOD in connection with overseas operations within a reasonable timeframe, as historically most have done anyway. The purpose of the limitation longstops is to stop historical and often vexatious claims being brought against the military on overseas operations, which put our service personnel at the mercy of being called to provide evidence long after the alleged events in question, with all the harm and anxiety that might cause them.
To ensure fairness between claimants, we have not excluded service personnel from those provisions. They will apply equally to service personnel and veterans as they will to any other person bringing a claim against the MOD in connection with overseas operations. I am confident that these measures do not break the armed forces covenant. The new factors and limitation longstops only apply to claims in connection with overseas operations and will apply to all claimants in the same way. The court’s discretion to extend the three-year time limit for death or personal injury claims and the one-year time limit for human rights claims remains unchanged in respect of any other claims, that is, those not connected to overseas operations brought against the MOD.
Additionally, our evidence suggests that 94% of those claims from service personnel are already brought within six years. We would expect that figure to rise in future, as we ensure that the armed forces community is made aware of the new measures and the relevant dates for bringing claims, including what is meant by the date of knowledge. That should encourage personnel to bring claims within six years, or earlier if possible, as after the primary time limit of three years for personal injury and death and one year for human rights claims expires, claimants must rely on persuading the courts to exercise their discretion to extend the time limit.
In summary, clauses 8 to 10, as they stand, do not breach the armed forces covenant and do not disadvantage service personnel or veterans. Let me make this clear point: on operations and in the area of modern warfare, we cannot lift human rights legislation and apply it to the battlefield. I accept that some people want to do that and think that is the right thing to do, but I respectfully disagree. The idea that people can go to court and argue for an extension produces exactly the position we find ourselves in now, where individuals such as Phil Shiner, who the right hon. Member for North Durham mentioned, have sought extensions under those situations, in order to bring thousands and thousands of claims against the MOD.
We are stuck in a position where we have to do something. In that scenario, I cannot apply something to one side, as I have indicated already, although the Legion would like me to. Similarly, we cannot take away all time limits, because that would defeat the entire purpose of the Bill, which is to provide some certainty for veterans. I accept what some hon. Members have said about people’s ability to sue within that timeframe if they are serving overseas. If they were in the UK on exercise or in Canada, it would be different, but that is because the unique nature of operations is different.
We have a duty to protect those people, as I said, both physically, from what is on the battlefield, and in the court of law. We have seen some horrendous experiences over the years. We can say, “It’s all too difficult”, and that we need to walk away—the reason why, for 40 years, no Government have done this is that it is really difficult—but we are in a position where we have to make choices: either we choose to leave the situation as it is now, letting it continue with no time limit, or we bring forward legislation to give certainty to our veterans.
Mr Jones
I am sorry—I do not agree with that. There is a way to improve the Bill, as with the issue of investigations raised earlier. We have talked about the Human Rights Act 1998, but if the Minister reads the judgment in the Smith case, he will see that the Supreme Court was clear about the Act’s limitations. Will the Minister explain the proposal to have a one-year time limit on human rights cases? Will he explain how he will limit appeal if section 33 does not apply to human rights cases, which it will not if the Bill goes through? How does that fit with our obligations under the convention?
Johnny Mercer
Our obligations under the European convention on human rights are not changed in any way. We have to design an investigative framework that is resilient and robust in the face of challenge under the convention. I have to disagree with the right hon. Gentleman—clearly, there is a difference of opinion here. That is allowed, that is what this place is all about, but the reality is that those on the Government Benches have a different view, which is that we cannot let the situation that has persisted for the past 40 years continue ad infinitum. We have to bring in fair and proportionate legislation to go beyond saying nice things about our people, or, “Isn’t it terrible that these people get dragged through the courts?”, while being prepared to do absolutely nothing about it. I am afraid that those days have come to an end. We have to legislate to protect our people. I will give way once more, and then I will finish.
Mr Jones
There is nothing fair about taking rights away from veterans. On the Human Rights Act, the one-year limit to bring a claim is clearly still there, but at present someone could bring a late claim under section 33 if at the time they thought it was not there. The Minister said that we would be abiding by the convention. Will he point to where in the convention—on our side, in the Human Rights Act—it says that time limits and out-of-time claims are applicable? I cannot see that.
Johnny Mercer
As the right hon. Gentleman will remember from his time in government, all legislation has to be signed off as ECHR compliant. The Department has done that, recognising our responsibilities under the legislation and meeting its requirements. He talks about rights, but people such as Bob Campbell have a right to be protected from experiences such as his over the past 17 years, and the soldiers who went through al-Sweady have a right to be protected as well. This is not all in one direction—it is not a one-way street—and we are clear that those people have a right to be protected in the jobs that we asked them to do. That is what the clause is all about, so I ask that it stand part of the Bill.
Question put and agreed to.
Clause 8 accordingly ordered to stand part of the Bill.
Schedule 2
International Criminal Court Act 2001
Stephen Morgan (Portsmouth South) (Lab)
I beg to move amendment 29, in schedule 2, page 16, line 4, leave out “six” and insert “ten”.
Stephen Morgan
It was clear that the Royal British Legion is in favour of the intent of the Bill but has concerns about part 2, which it believes breaches the armed forces covenant. Charles Byrne was very clear on that point.
Johnny Mercer
I make this point again. I have heard it said a number of times, “We support the intent of the Bill.” Over 40 years Members have spoken of supporting the intent of looking after our veterans and protecting them from vexatious claims. No one has done anything about it. Lots of people gave evidence and said they supported the intent of the Bill. It does not mean anything unless we get into the detail of the Bill. The Royal British Legion did not oppose the Bill; it said it had concerns about the armed forces covenant, which we addressed, but it did not oppose the Bill.
Stephen Morgan
We could spend all afternoon on different cases. That is why the amendment is so important. I have another example. It is about how legislation would have denied justice to a former royal marine with noise-induced hearing loss, according to the Association of Personal Injury Lawyers. The former marine received nearly half a million pounds for a noise-induced hearing claim on the grounds that his hearing loss and tinnitus was caused by a negligent exposure to noise. During his career the marine served in Northern Ireland, the Gulf and Afghanistan, and he was exposed to noise from thousands of rounds of ammunition, thunderflash stun grenades, helicopters and other aircraft and explosive devices. His claim related to his entire service.
When he left the Royal Marines in 2012 because of problems with his hearing, he was unaware that he was able to make a claim for compensation. He eventually spoke to a solicitor in late 2014, seven years after he was first aware that he had problems with his hearing. The MOD admitted liability and made no argument about his case being brought out of time. The time limit in this Bill, however, would have eliminated all aspects of the claim relating to the Marine’s extensive service overseas.
Johnny Mercer
I totally respect the manner and intent of the hon. Member’s remarks, but, again, the Mark Bradshaw case and the case of the royal marine, which we have looked at, would not be affected by this legislation. When Bradshaw became aware of his PTSD being service-related, it would have been dealt with within six years. The same detail applies to the royal marine.
I do not know what else to say, but the stuff that is coming forward—I have to be honest and say that I have heard it before, because I know it comes from a campaign group—is just simply not true. I do not know what to do with the cases being presented to me, which are simply incorrect.
Stephen Morgan
The claim could have been made only in relation to negligent exposure in the UK. It might not have been possible to isolate the extent and the effect of negligent exposure in the UK, making it very difficult to claim any redress at all. Why are some medical conditions worthy of justice, and not others? Many other medical conditions are likely to fall outside the cut-off point, and there are conditions such as long-term deterioration of joints resulting from carrying heavy equipment.
The Chair
To confirm, we are debating amendments 30 to 54, with amendment 29. If no other Members wish to speak to any of those amendments, I call the Minister.
Johnny Mercer
I wanted to address a couple of points about the limitation period. In the Stubbings ruling that we looked at, limitation periods are okay under ECHR regulation as long as there is compatibility with article 6, the right to a fair trial. That is the test that has been undertaken in this exercise and that is the advice that the Government have received. The right hon. Member for North Durham may well disagree with that, and is well entitled to.
Johnny Mercer
Not at the moment. I have literally just stood up. I will get through a couple of points, if I may.
As to the idea that I have not engaged in the process, and that it is just “head down, drive on”, I should like to know whether there has been a Bill that has gone through this place in the past five years when the Minister has been more ready to say a number of times that he was willing to work cross-party to improve the Bill; but I have to deal—[Interruption.]
Johnny Mercer
Thank you, Mr Mundell. I have to deal in the real world. I have to deal with real facts and figures—not made-up stuff—and how they apply to the battlefield. There is clearly a difference of opinion between the Government and the Opposition about whether the ECHR should be applied on the battlefield. I accept that. That is the point—that ability to continue these extensions is part of ECHR compliance. The Government do not agree that the battlefield is the right place, or that retrospective application of the ECHR to the battlefield is appropriate.
I have seen comparisons with convicted criminals a number of times in a lot of campaign items. Hon. Members are comparing convicted criminals to armed forces veterans. That comparison—prisoners to veterans—has been made a number of times. I can tell Members that that goes down like a cup of cold sick in the veterans community. It is not comparing the same things.
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.
Johnny Mercer
As for the idea that we must withdraw part 2, the whole point of the Bill is to bring in time limits to provide certainty for veterans, so if colleagues take it away, what is the point of the Bill? Why are we here in the first place, if we will just continue as we currently are?
Johnny Mercer
Not at the moment.
The six-year longstop for personal injury and death claims is an important part of the Bill. The measure will help to provide greater certainty for service personnel and veterans by requiring civil claims arising from overseas operations to be brought promptly. Effectively, service personnel will not have to worry about having to give evidence on what would have been very distressing events many years in the future.
The public consultation launched in 2019 sought views on the length of time for such a longstop, and asked whether 10 years was appropriate. Many respondents supported a period of less than 10 years, so we decided to reduce the time limit for the longstop. Six years was chosen because it aligns with the limitation period for some other tort claims. That decision was further informed by the case of Stubbings v. the UK, in a judgment that has been repeatedly confirmed. The European Court of Human Rights upheld an absolute six-year limitation period. The Court noted the need in civil litigation for limitation periods because they ensure legal certainty and finality and the avoidance of stale claims, and prevent injustice where adjudication upon the events in the distant past involves unreliable and incomplete evidence due to the passage of time.
Johnny Mercer
Is there going to be a new point? I have given way a lot and we seem to be repeating the same points.
Mr Jones
The Minister is going backwards and forwards just reading out what he has in front of him—[Interruption.] I am sorry, but he is. He is not answering any questions at all. Can I ask the Minister this? He says the reason for the longstop, which disadvantages veterans, is to stop all these vexatious claims. In terms of the Shiner case, for example, how many of those cases were actually time-limited cases and argued in terms of this limitation? If that is the case and there were thousands of them—I would be very surprised if there were—I would imagine in most cases the Limitation Act would weed out most of those that were vexatious. To actually introduce this to solve that part of the problem is going to have a massive impact on servicemen and women who wish to bring claims against the MOD.
Johnny Mercer
Of Phil Shiner’s claims through Public Interest Lawyers, 62% were brought more than six years after the date of the incident. The Bill imposes a six-year limit, meaning that 62% of those claims would have been out of time. This legislation is designed to redress the balance. We are operating in a very difficult area, I accept that. Doing nothing has been the easy option that this House has pursued for 40 years and it is an approach I disagree with.
Johnny Mercer
I am not going to give way again, there will be plenty of opportunity for the right hon. Gentleman to speak further. I recommend that the amendment be withdrawn.
Stephen Morgan
I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Chris Evans
I agree. I will come to an example that my right hon. Friend probably knows as well, but I first will say something about service families. When servicepeople are away, their families are left with the worry, the childcare and other needs. When a serviceman suffers from cancer, it is the family who have to watch their loved one wither away. It is vital that they have a chance to make a claim.
It is interesting that my right hon. Friend the Member for North Durham intervened in my speech. When we talk about personal injury, those of us who come from mining communities will remember the example of the miners’ compensation scheme and how miners were left behind. I am not comparing miners to veterans, but it is a similar principle.
Johnny Mercer
The hon. Gentleman, for whom I have a lot of respect, has now spoken for about 10 minutes on nuclear test veterans. I trust that he is aware that nuclear test veterans are not covered by the Bill. It was not an overseas operation, and they are not covered by the Bill. The legislation that we are debating does not affect them in any way.
Chris Evans
I should ask the Minister to reply to that—I am just the post box here.
Johnny Mercer
Nuclear tests were not classified as operations. There is a lot of conversation about what Operation Banner was in Northern Ireland, but nuclear test veterans are not classified as having been on an operation. They are not subject to the Bill.
Chris Evans
That raises the actual point. When someone is ill, they know something is wrong, but they do not know what caused it; a doctor or medical researcher has not confirmed a link.
Johnny Mercer
I think it will be helpful if I make it clear that service personnel cannot bring claims for service pre 1987. Nuclear test veterans have access to the war pension instead, which has no time limit, so issues around nuclear test veterans and the Bill are not comparable.
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—
Mr Jones
Is the Minister saying that that 62.7% were all cases that went before a judge under the Limitation Act 1980 and were deemed to have enough evidence and special circumstance to take them forward? If he is, I find that remarkable, because in my experience of the Limitation Act, trying to get cases under it is very difficult. That is what was said by the Association of Personal Injury Lawyers—they are unique cases and specialists are needed. I would be surprised if the figure was as high as that, so that of the 4,000 cases, more than half were out of time and went before a judge. If so, why did the MOD not just strike the cases out straight away, so that they were out of time? It would be interesting to know if they all went before a judge, because that suggests that the judge clearly thought that there was enough evidence to progress them. Perhaps the Minister will write to me about that—I am happy to accept that he cannot have all such figures to hand.
I am interested to know the number of those so-called vexatious claims because, I tell the Committee now, in my experience, someone who takes a vexatious case to a limitations hearing will not get very far, because of the high bar. People have to argue not only the reasons why a case should be brought out of time, but the case itself and its possibilities of success later in the litigation. For 60-odd per cent., there must have been a very soft judge allowing cases through under the Limitation Act. But I will wait to hear clarification from the Minister.
Something we have not mentioned is sight loss. I accept that in some cases people wake up and have lost their sight overnight, because of blood clots and so on, but more commonly sight is lost incrementally over time. That can sometimes take up to 10 years. If so, the veteran or serviceman or woman might have thought, “Well, I’m losing my sight”, but did not get a diagnosis, or have thought only after 10 years that they might be able to take a case, because the sight loss was related to service. They might not have thought it was but, if it was, 10 years later the Bill would not allow them to take a case. At present, they can get the diagnosis, the medical evidence, the reasons and the arguments for a limitations hearing on why they need to take a case out of time. That will not be the case if the Bill goes through.
Another example is respiratory issues, some of which may lie dormant for a long time and be the result of a whole host of conditions. I remember that in Iraq and, in particular, in Afghanistan, we had a lot of respiratory problems to do with bacteria, because the air was full of pathogens and other things. People might not have had a hacking cough but, a year or so later when they got home, they started to have such symptoms. Again, they might not have related that to their service straightaway, or with certainty, but it was later shown that, because of the use of animal manure, especially in some rural areas of Afghanistan and Iraq, people breathed in pathogens when the dust got into the air. That got into people’s lungs but did not affect their health until many years later—again it was a direct result of service, because they were there to serve their country.
The other issue, which we have touched on a little bit, is how this affects families. I raised the issue earlier of various cancers and other diseases from which people die. People think, “Why has this cancer appeared?” or “Why has this individual suddenly died?” Usually, the causes can only be identified at death. The individual will not have the date of knowledge, but the family will.
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.
Johnny Mercer
The amendments propose changing technical parts of the Bill, so I hope hon. Members will bear with me as I try to address them in turn. These amendments are aimed at making changes to the point from which the clock starts running for both personal injury and death claims, as well as Human Rights Act claims relating to overseas operations. The amendments mean that for these types of claims the longstop clock would run from the claimant’s date of knowledge only and will not also run from the date of the relevant incident or act.
Taking amendments 76 to 87 first, in relation to the personal injury longstops contained in schedules 2, 3 and 4, there are several problems with this effect. The longstop is already able to run from the claimant’s date of knowledge under the existing law. This Bill does not change that position. We consider that the definition of the date of knowledge in section 14 of the Limitation Act 1980, and its Scottish and Northern Irish counterparts, is satisfactory and works well in practice. There is no reason why the date of knowledge for overseas operations claims should be defined differently. It is therefore not necessary to replace this definition with a new one.
The Chair
That is not a point of order, but I am sure that the Minister will accommodate it.
Johnny Mercer
I am more than happy to slow down. The date of knowledge provision in this Bill is new for Human Rights Act claims relating to overseas operations, the primary time limit for which currently runs only from the date of the act. We introduced the date of knowledge to mitigate the risk of any unfairness that might be experienced by claimants as a result of the new absolute longstop.
We chose 12 months for the relevant time period because this aligns with the primary limitation period in the Human Rights Act, which requires claimants to bring their claims within one year of the relevant act. We therefore consider 12 months to be a reasonable period for claimants to gather the necessary evidence to bring their claim.
Amendments 74 and 75 aim to change the definition for the new date of knowledge set out in clause 11. We consider that the definition in clause 11 is comprehensive and fair to both claimants and the MOD. It does not replicate section 14 of the Limitation Act 1980, for example, because parts of that definition do not make sense in the context of Human Rights Act claims. Similarly, amendment 75 proposes new parts for the date of knowledge definition that do not work in the context of Human Rights Act claims.
Lastly, amendment 92 removes an important part of the date of knowledge definition, which adds an objective element to the test. This ensures that claims cannot be brought indefinitely if a victim has failed to take reasonable steps to gain the relevant knowledge.
These amendments are simply not necessary. The existing definitions of the date of knowledge are comprehensive and fair, and there is no good reason why the longstops cannot run from both the date of the incident or the act, as well as the date of knowledge. These amendments will unnecessarily complicate the Bill and cause confusion.
I will address two of the points raised by the hon. Member for Islwyn about education for those who are in the armed forces. Running alongside and in tandem with this Bill, if it becomes law, will be a significant education effort through a series of annual tests that we will give to our service personnel. I am more than happy to write to the hon. Gentleman about that.
I understand the points made by the right hon. Member for North Durham, but they are not within the scope of the Bill. The nuclear test veterans and the other pre-1987 cases that he talked about are not covered by the Bill. A lot of today’s debate has been outside the context of the Bill. I do not know what the point is of continuing to bring up cases that are unaffected by the legislation that we are discussing. I have huge sympathy for nuclear test veterans and for others. Indeed, I lobby hard for the recognition that I think we all want to see for those people, but none of that is covered by this legislation. That is worth remembering.
Johnny Mercer
No, not at this stage. I therefore recommend that these amendments are withdrawn.
Chris Evans
I just want to raise a point of clarification with the Minister. The nuclear test veterans were brought up because that was an example of a case that took numbers of years to emerge. I thought it was the best example of how people can be affected by an operation where it takes years for the case to develop.
I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.