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

Johnny Mercer Excerpts

Committee stage & Committee Debate: 9th sitting: House of Commons
Thursday 22nd October 2020 Public Bill Committees

That is just wrong and it is not just me saying that. The Royal British Legion says it, too. I know that the Minister had—I was not there, but I read the transcript—a rather challenging discussion, to put it that way, with the secretary general of the Royal British Legion. The points the RBL is making are perfectly reasonable, which is why part 2 must be taken out of this Bill. Otherwise, life for our servicemen and women and our veterans will be worse than it is now.

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

We are beginning to cover some pretty familiar ground. I will set out the Government’s position clearly on the six-year limit and speak to all the amendments in the group.

As I have already said, the six-year longstop for both personal injury and death claims, as well as claims under the Human Rights Act, is an important part of the Bill. The longstop will provide the much-needed certainty for service personnel and veterans that we are trying to achieve with part 2 of the Bill. I cannot stress enough our belief that the negative impact on the ability of service personnel and veterans to bring claims will be limited. We have not made that up; it is based on our statistics and our evidence.

We are not trying to catch service personnel out or take away their rights to bring claims against their employer, against the MOD or against the Government. They will still be able to bring claims, and the date of knowledge provisions, which are such an important part of the Bill, mean that even in cases when an illness is diagnosed many years down the line, claims can still be brought within six years of that diagnosis, or 12 months for HRA claims.

I have heard the arguments that there are many current and former service personnel who have suffered injuries as a result of their service but who have not yet brought through their claims and would be timed out once this Bill becomes law. I have seen no evidence of that, but I again encourage those people to bring their claims as soon as possible.

[Mr Jones]

The Minister says he has seen no evidence, but he quotes the figure of 94% being brought in time. What is the number of cases that have been brought under the Limitation Act against the MOD? He says the limit gives certainty; well, it does give certainty to people—certainty that after those six years, they will not be able to take any claims at all.

[Johnny Mercer]

Many cases have been raised, I agree, such as Snatch Land Rover and the Royal Marines individual who has been mentioned a number of times. However, as I have outlined a number of times, none of those would be affected by this Bill, because the period starts from the point of knowledge. We have had this conversation before. I encourage people who feel that they could be disadvantaged to come forward, to speak to the Department or speak to me, but I have to operate in reality, not saying things that are not true. I include any non-service person who believes that they have a meritorious claim against the MOD, because fundamentally, we are not trying to stop legitimate claims.

[Chris Evans]

Will the Minister give way?

[Johnny Mercer]

Not at the moment.

[Chris Evans]

It is just a quick question.

[Johnny Mercer]

Of course it is in the best interests of claimants to bring cases in a timely manner, when memories are fresh and access to evidence is easier. We should also remember that the current time limit for bringing claims is three years for personal injury or death and one year for Human Rights Act claims. While the courts have discretion to extend those timelines indefinitely, claimants must persuade them that it is equitable in all the circumstances to do so.

[Chris Evans]

A quick question for the Minister: last week, in The Sun on Sunday, he said he would make it his personal mission to help to ensure that cases that might fall out after six years are brought within six years. Will he clarify how he would do that in action?

[Johnny Mercer]

Of course. Part of this Bill is a huge education campaign to get people to understand what their rights are. While we have drawn the line at six years, we have a duty to make sure all the people who are in our employment and who served with us understand what the rules are and where the boundaries are, and at the same time are protected from the vexatious sort of claims we have seen over the years. I genuinely believe it is a fair line to be drawn, and I reiterate that lots of cases have been raised, but when we have looked into them, none would have been precluded under the Bill.

[Mr Jones]

The Minister is not answering my hon. Friend’s question. I accept that there are good reasons for time limits; I have no problems with time limits on civil litigation and other things. I asked him earlier about the number of cases that have fallen outside the limitation period that the MOD has defended. I do not for one minute question the Minister’s commitment, but remember that he and I will not be here when this comes into force. I tell him now that the MOD will use this as a way to stop claims.

[Johnny Mercer]

I accept the right hon. Gentleman’s point that there is a risk of any legislation being interpreted in different ways by different Administrations over a period of time. That is the reality of life in this place, but I cannot accept the repeated regurgitation of cases. We have looked into individual cases. When these cases are raised, I write them down and go back to the Department to look into them. They are not affected by this legislation. Members can sigh and so on, but I cannot do anything other than operate within what is actually going on, rather than deal with stuff that is not true.

Members will remember that in one of the evidence sessions for the Bill, the representative of the Association of Personal Injury Lawyers, Mr Al-Nahhas, told us that he frequently rejects clients who want to bring claims that are out of time. Although I would urge everyone to bring meritorious claims as soon as they can, I know that sometimes the courts allow claims to proceed after the primary limitation period has expired. The Bill will not stop that happening. The courts will still be able to extend the primary limitation period for up to six years, but we are stopping claims—often unmeritorious—being brought many years down the track.

The amendments would effectively give the courts the same discretion that they currently have to extend the primary limitation periods indefinitely, but they are contrary to the intent behind the Bill and would reduce the certainty that we want to give to service personnel and veterans. Before I recommend that the amendments be withdrawn, I would love to give way to the right hon. Gentleman again.

[Mr Jones]

The Minister has raised something that is very complex for the courts. He said that the period will be six years from the date of knowledge, and the courts will be able to give discretion within the six-year period. Is he not expecting—some people will—to take this to court, in terms of saying that it is unjust if a case falls outside the six years? This will end up with a lot more confusion than just keeping what is there at the moment: section 33 of the Limitation Act 1980.

[Johnny Mercer]

I completely disagree; it is the current situation that we has produced the chaos we are trying to bring order to with the Bill.

[Mr Jones]

It has not.

[Johnny Mercer]

The right hon. Gentleman can say it has not, but people such as Bob Campbell, to whom he has alluded a number of times, would strongly disagree. We are trying to bring certainty for our veterans and service personnel going forward. That has been a strong Government commitment from the start of this Government, and I support it. I therefore recommend that the amendments be withdrawn.

[Stephen Morgan (Portsmouth South) (Lab)]

We wish to withdraw amendment 69 and pick up the issue at a later date.

Amendment, by leave, withdrawn.

--- Later in debate ---

In terms of the issues raised in the schedules around mental health, my hon. Friend the Member for Portsmouth South makes a good point. There is sometimes no date of knowledge in these situations; it is very difficult to pin that down. In his statement the other day, I think the Minister basically admitted that limitations are going to be set on people’s rights, but the benefits are going to be on the other side. He mentioned the case of Major Campbell. Well, there is nothing in the Bill that will stop another Major Campbell case. If we look at that case, it had nothing at all to do with time limits or with civil litigation—it was to do with the investigation process. I have moved some new clauses that would improve the Bill in terms of limiting investigations.

[Johnny Mercer]

Does the right hon. Member understand—I am sure he does—that he is fundamentally wrong to say that the Bill would not have had an impact in the Major Campbell case, which he keeps referring to? He talks about the investigations taking so long. Those investigations are driven by bringing civil or criminal claims. Bringing in the longstop would mean that the worst Major Campbell could have had was going through to 2009; he has repeatedly said that. Those are the facts of the matter, and it is important to bear that in mind going forward. The Campbell case is a very emotional case; however, we have to stick with the facts, and the facts are that this measure would have limited the experiences to 2009, as he has said, and as we have laid out on a number of occasions.

[Mr Jones]

I am sorry; I totally disagree with the Minister. He is wrong. It was not the claims that drove that case. As Hilary Meredith said in her evidence to the Committee, part of the problem was that the MOD started to pay out large amounts of compensation to individuals. I think I explained the reason why that was done at the time; it was partly to follow a little bit what the Americans were doing, and it was partly a cultural thing in Iraq—for example, if there was a car accident, a certain amount of money was paid and that was that. It even got to where we might call it brutal. I remember sitting once in Basra with a claims officer, dealing with claims. They were everything from a car accident, “My goat’s been shot” and “You’ve run over my dog” right up to, “You’ve ruined my crop landing a helicopter, or flying something into it.” They were paid out, and it even got to a point, which we might find quite cold, that somebody’s death was covered by making a payment—blood money, I think, is how the Americans referred to it. That might seem harsh and callous, but we did the same things, just with a legal process. That led to others.

The Minister and I totally agree about people like Phil Shiner. There is no defence there. However, in Campbell’s case, if an accusation had been made to the MOD, not from a civil case but because someone came forward to say, “This happened,” it was not, then, the claim that kicked it off—it was the accusation. I accept that Shiner, in some cases, was trying to put forward things that were false, or encouraging people—I think there were even cases where he paid people—but the Bill would not stop that case coming forward, because when an accusation is made to the MOD, it will have to investigate it.

That is the problem for the Minister. He has focused in, with something of a gut reaction, against people such as Phil Shiner, and I sympathise with him—I have lots of sympathy with him on that. I have no time for those things, but the MOD created part of the problem itself, in the compensation culture that it engendered. Then it made it worse—I know the Minister was trying to be party political the other day, but I am not going to be, shudder the thought—by setting up the IHAT investigation in 2010, under a Conservative Government. That just fuelled things.

I still plead with the Minister to do now in the Bill what Campbell’s case needed, though I accept his officials will say, “Minister, we must wait until next year’s armed forces Bill.” No, put it in now. If he includes issues to do with controls over investigations, he will have my 100% support, because that is what will drive down cases such as the Campbell one. It was completely unacceptable that that happened. Yes, political decisions were made about Iraq and Afghanistan about paying compensation. A Conservative Government set up IHAT, and, as happens with a lot of these things, it became like a licking lollipop, in terms of the way they keep growing. However, if the suggestions of the Judge Advocate General, Judge Blackett, about looking at investigations were put in the Bill, that would stop the Major Campbell cases. Just introducing a limitation period will not stop cases. They will still be investigated.

Let us be honest, it is a proud testament to the professionalism of our armed forces that, in the horrendous situations that they have been involved in over the past few years, in Iraq and Afghanistan, we have had small numbers of disciplinary cases. That is testament not only to their courage but to the system of discipline in our armed forces. We have a set of regulations, laws and training that ensure that people know what they are doing, and that they follow. As to the cases that have been brought, such as Marine A, that was not started by an ambulance-chasing lawyer. It happened because someone took a video of Marine A shooting a wounded Taliban fighter, which was clearly contrary to all his training. The Bill would not stop that. In that and other relevant cases—I am racking my brain to think of them—the investigations were complete within two years. That was quite quick, so I think it can work. It is about case management.

There is another point to be made about that. When the service man or woman gets to court, do they get a fair hearing? In that case, he did. My question is why on earth the legal representatives did not argue—quite rightly—at the first hearing that he had suffered mental trauma and other things. He was found guilty by a military court—not a civil court—of murder on the first count. But when it went to appeal, it was reduced to manslaughter, which was quite right, taking into account the circumstances in which the incident occurred, as well as credible evidence from mental health professionals about his mental state at that time. That does not excuse what he did, but it puts context around it.

That is why, as I said before, I am a supporter of the military justice system, because cases are dealt with by people who understand that system. Putting a time limit on cases will disadvantage members of the armed forces by taking them out of section 33 of the Limitation Act, and for what? For something that will not reduce the number of cases.

There is another point we could deal with very easily. I ask the Minister again, how many limitation cases have there been from civilians or anybody else? I suggest there would be very few, but that is not the point. The point is that servicemen and women have a right to go outside of that time if there are exceptional circumstances. Having taken limitation cases—not personally—I know that they are done only in exceptional circumstances, because the threshold is so high. That is why when the Minister said the personal injury lawyers said they sometimes advise clients not to take these cases on limitation, he is quite right. I have done that myself, because I know there is not a cat in hell’s chance of the court ever saying that the reasons are justifiable in terms of the Limitation Act.

The Limitation Act is there for a good reason. It is not—I think this is what the Minister has in mind—a green light for everybody to come out of the woodwork after a huge period of time and say, “Yes, I want to put my case.” It is not like that; it is very difficult. I support that, because there must be time limits for cases, for the reason the Minister gave—I agree with what my hon. Friend the Member for Portsmouth South said—which is that we have to try, if possible, to get cases done as speedily as we can. That is fair for the victim and fair for the accused. But this Bill will not do that.

The other thing that is said is that the Bill will stop investigations. It will not stop investigations at all, and they could go on a long time. As I said in a previous sitting, that must be horrible. We cannot imagine being accused of some of the horrendous crimes that Major Campbell was accused of and having that hanging over us for a long time. That is not fair to that individual.

[Johnny Mercer]

It has never been the Government’s stated position to stop investigations. I think the right hon. Member knows that. We cannot run a Department and refuse to investigate allegations that people bring forward.

[Mr Jones]

No, I am not suggesting for one minute that it is. I am suggesting to the Minister—this is what Judge Blackett came forward with—that we need a way of managing those investigations, to ensure that they are speedily done and that there is judicial oversight of the process, not oversight from the MOD or the chain of command, which could lead to accusations. I came forward with three suggestions of how to do that. Get rid of all the minor cases in the system. That is just good case management, and it also helps the individual who has been accused. If the judge thinks there is no evidence, they should throw the case out. That can be done in magistrates courts; why can we not do it in this system? That is a huge missing bit of the Bill.

To reiterate, I am not for one minute accusing the Minister or the MOD of turning a blind eye to serious allegations. If an allegation is made, it has to be investigated.

The issue is the way it is investigated and the time it takes to investigate it. The idea is that the time limit process will somehow reduce the number of claims. I do not think it will, because people will bring a claim within six years, it will have to be investigated, and someone will have to ensure that it is case-managed through the system.

--- Later in debate ---

Another question is why this was not done before in legislation. It is a good question. Do I support the intention behind the legislation? Yes, I do support trying to ensure justice for servicemen and women, but we must also get justice for victims. Considered from the MOD’s point of view, if someone is suffering from an injury or a loss, as in the Snatch Land Rover case, are they the victims? Yes, they are. They do not want to be seen as victims, quite rightly, and I hate the word “victim” in that context. If someone’s mental health has been completely ruined because of their service, or they have had an injury or disease that has ruined their lives, what is gained by stopping them from taking a case to get compensation? In some cases it is not about compensation, but about making sure that the individual has some type of justice at the end of the day. The Bill will deny them that, and that cannot be right. With those brief remarks, I will conclude.

[Johnny Mercer]

I have listened at length and for many hours to a lot of the points that have been made, and I fear we are beginning to reach a point where we are repeating ourselves to a large degree.

[Mr Jones]

There is more to come this afternoon.

[Johnny Mercer]

Fantastic, fantastic. With any such legislation, I understand that there will be people with fears or concerns, and there will be an element of risk. I cannot honestly stand here and say that the Bill disadvantages troops or service personnel. I accept that there is a difference of opinion here, but I would not even think about introducing legislation that disadvantaged them.

Looked at in the round—and as I have said many times—this is a good, fair and proportionate Bill. I will defend it. I have already outlined that Government are creating new factors to ensure that the courts are directed to consider the uniquely challenging context of overseas military operations when deciding whether to extend the primary limitation periods for personal injury and death payments, and Human Rights Act claims. Amendments 88 to 91 are therefore unnecessary. They introduce a further factor to which the UK courts must have particular regard when determining whether to allow claims beyond the primary limitation periods of one year for Human Rights Act claims and three years for personal injury and death claims. Their stated intention is to ensure that the claimant’s interest in having their civil claim proceed is not subordinated to the additional factors being introduced by this Bill, but the courts already take into account the interests of the claimant in having their claim proceed when determining whether it is equitable to allow a case to proceed beyond the primary time limit.

For personal injury and death claims in England and Wales, section 33(1)(a) of the Limitation Act 1980 states that the courts should have regard to any prejudice that might be caused to the claimant if the case is not allowed to proceed beyond three years. Prejudice would include the impact on the claimant’s ability to secure their rights through legal proceedings. For personal injury and death claims in Northern Ireland, article 50(1)(a) of the Limitation (Northern Ireland) Order 1989 has the same provisions. For personal injury and death claims in Scotland, section 19A(1) of the Prescription and Limitation Act Scotland 1973 sets out the equitable tests in more general terms, but that still includes considering the interests of the claimant in securing their rights through legal proceedings.

For Human Rights Act claims, section 7(5)(b) sets out that the court may allow claims to be brought beyond the primary 12-month period if it considers it equitable to do so, having regard to all the circumstances, which would include considering the interests of the claimant in vindicating their human rights through legal proceedings. The factors introduced in clause 11 do not replace the tests set out in section 7(5)(b) of the Human Rights Act; they just outline considerations that reflect the unique context of overseas military operations.

[Liz Twist (Blaydon) (Lab)]

As the Minister is arguing that there is sufficient protection within the law, can he explain the difference in the views taken by very many of the witnesses we saw in the first two days of this Bill Committee, the Centre for Military Justice, and Rights and Security International, whose primary focus is to ensure that our veterans and armed forces are properly represented? There seems to be a mismatch between what so many other people have said and what the Minister is saying.

[Johnny Mercer]

I accept that there was an imbalance of the views in the evidence that the Committee heard. Those groups, while I accept that they have a degree of concern for the welfare of service personnel and veterans, are not the sole arbiters or owners of that position. We are all here trying to help those who serve and veterans. In the end, we have to make a balanced judgment about what is in their best interests, and that is what this Bill is about.

This is not a sort of anti-human rights thing; it is simply bringing into that debate an understanding of the reality of modern combat that has not been there for many years and has resulted, as we have seen, in the experiences of people such as Major Bob Campbell. Those two things cannot be argued. There is, of course, the human rights element, but there is an application of the ECHR to the battlefield that is not correct and has resulted in what we have seen.

[Liz Twist]

What these amendments seek to do, and what those witnesses were asking us and the Government to look at doing, is improve the Bill so that it better reflects the broader range of interests. I am surprised that the Minister does not want to reflect on that and build in some of those protections.

[Johnny Mercer]

That is because I have reflected on those things, and in my and the Government’s view, which is allowed to be different, they do not improve the Bill. If we were to take away the six-year limit, we would start diverging away from one of the clearest aims we have, which is to provide certainty for veterans. I understand there are different views, but I am afraid I do not agree, and neither do the Government.

For those reasons, amendment 88 to 91 are not necessary. We have already discussed the reasons why clauses 8 to 10, which introduce schedules 2, 3 and 4, should stand part of the Bill, so I do not intend to repeat them here. I recommend that the amendment be withdrawn and schedules 2, 3 and 4 stand part of the Bill.

--- Later in debate ---

[Chris Evans]

It comes back to the point that my right hon. Friend has so eloquently made over the last few sittings. I tell the Minister this: I have enjoyed my right hon. Friend’s contributions, though they may have been difficult.

[Johnny Mercer]

So have I, absolutely.

[Chris Evans]

Sometimes I am not sure.

I was not au fait with the case of the Snatch Land Rovers before I came here. The point my right hon. Friend the Member for North Durham has been making is that one day, in the near future—a nearer future for some than for others—we will not be here, and others will come in, but the legislation will stay. We have to get it right. He knows as well as anyone else, given his experience, that the Ministry of Defence will hide behind its lawyers. In this case, they would have used the Human Rights Act. That is why it is important that we have scrutiny at the highest level. It is important that the provisions are not left open for lawyers to use at will. I absolutely agree with my right hon. Friend.

To me, it is clear that intense scrutiny is highly sensible. It ought to be required when the UK decides to derogate from conventions; otherwise, we will be setting a dangerous precedent. This country has a unique role in global history. We have set the standard for so many countries to follow.