Overseas Operations (Service Personnel and Veterans) Bill

Lord Falconer of Thoroton Excerpts

Committee stage
Thursday 11th March 2021 Lords Chamber

[Lord Falconer of Thoroton (Lab) [V]]

This has been a very significant debate, and one should not lose sight of the important changes that will take place in the ability of people to sue the MoD in respect of human rights claims, tort claims and contract claims arising out of overseas operations. The underlying problem, which the noble Lord, Lord Thomas, identified in his very clear and effective opening remarks, is that you do not want a situation where, when a court is considering whether to extend the limitation period beyond the primary limitation period, there is a bias in favour of the defendant, the Ministry of Defence.

What the noble Lord is saying, in effect, is that it should be approached in the way that these cases are approached in every other piece of civil litigation where there is an application to extend a period of limitation beyond the primary limitation period: the judge comes to a conclusion as to what he or she thinks—this is not quite the line in the statute—is just and equitable in all the circumstances. One of the really important things that one is looking at is the fact that the claimant will have a claim, and the claimant may be losing what would otherwise be a just claim because of the passage of time—and it may well be in particular that the passage of time beyond the primary limitation period could not properly be described as the fault of the claimant.

Over the years, the courts have become quite expert at exercising a discretion in relation to this, both under the Limitation Act 1980 and under the Human Rights Act 1998. My noble friend Lord Hendy, in his very helpful and compelling remarks about how the limitation period works, and the noble Lord, Lord Faulks, were basically in the same place. They were both saying that we should strike the balance in an even-handed way. I hope that it is not the case that there is going to be a bias in favour of the MoD, because, as the noble Lord, Lord Faulks, said, that is not desirable. My noble friend Lord Hendy said that there should not be bias. I completely agree with that. The purpose of this first group of amendments advanced by the noble Baroness, Lady Smith, and the noble Lord, Lord Thomas, is to make sure that there is not such a bias. I agree with my noble friend Lord Hendy and the noble Lord, Lord Faulks, that it has to be clear that there is not going to be a bias.

I believe, therefore, that amendments to the Bill are required. Whether or not the proposals of the noble Baroness, Lady Smith, and the noble Lord, Lord Thomas, are the best way to do it in group 1—there might be another way of doing it—the sentiment that underlies these amendments and the fact that they have been supported by both my noble friend Lord Hendy and the noble Lord, Lord Faulks, is significant. I very much hope that the noble and learned Lord, Lord Stewart of Dirleton, will have listened and may perhaps reassure us that he will come back with some amendments to make sure that there is not that undesirable bias.

[The Advocate-General for Scotland (Lord Stewart of Dirleton) (Con)]

My Lords, I have listened with care to the remarks advanced by noble Lords in relation to this proposed amendment. At the outset, may I note and associate myself with remarks made by noble Lords as to the tenor of the speech introducing this part of the debate by the noble Lord, Lord Thomas of Gresford. This seems to me, drawing on my short experience in your Lordships’ House, to be of a kind with contributions which we hear from that source, from the noble Lord, Lord Thomas of Gresford, concerned as it was that the principles which underpin the legal systems in the jurisdictions of our United Kingdom should apply universally, irrespective of whether claimants are British subjects or not—underpinned also by that confidence in the ability of our courts and our system to do justice among all forms and manners of people.

In considering this amendment, I note that we have already discussed first of all the three factors that this Bill is introducing which the courts must consider and to which they must have particular regard when deciding whether to allow claims connected with overseas operations to proceed after the primary limitation periods have expired. I will not rehearse the arguments that I have already made as to why we are introducing these new factors, though I will necessarily, in answering your Lordships’ points, touch upon them.

However, the additional factor that these amendments propose to add is not, I submit, necessary. That is not because it is not right for the courts to consider the importance of proceedings in securing the rights of the claimant—of course it is—but because this is already something that the courts will take into account when they consider whether it is equitable in all the circumstances to allow a claim to proceed. The court would inevitably be assessing the right of the claimant in determining whether or not an extension to the time limit should be granted. The additional factor in terms of the amendment proposed does not enhance the policy aim of the Bill, which is to help provide service personnel with greater certainty. It would however, I submit, increase legal complexity in a way that is unnecessary.

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[Baroness Smith of Newnham (LD) [V]]

My Lords, in this suite of amendments we are focusing on a relatively narrow area. On this occasion, I should be slightly relived that the noble Lord, Lord Faulks, does not entirely agree with the movers of the amendment, because at least it gives me some additional points to respond to.

I take the point that there might be a shorter period within civil law and domestically, but there is a very clear difference between overseas operations and the civilians and military who might have to bring claims, and what might happen in a civilian context in the United Kingdom. As Emma Norton pointed out in her evidence to the All- Party Groups on Drones and on the Rule of Law, if something happened

“within the UK more than 6 years ago, courts would remain able to extend time limits”,

but if something happened overseas the courts would not have that right. As my noble friend Lord Thomas of Gresford pointed out, what is being proposed is unique in the British justice system—a new category of claims arising from overseas operations in respect of which the courts would have no right to give an extension.

It is clearly right that claims should be brought expeditiously and dealt with expeditiously, but sometimes it will not be possible for cases to be brought within the time limits the Government are suggesting. It is surely right to look for ways to ensure that claimants who may have not been in a position to bring a claim within a year of date of knowledge can bring the claim, and further discretion can be brought.

As with amendments in the previous and subsequent groups, if the Minister does not feel able to accept the language of our amendments, perhaps he might suggest how claimants who have cases arising from overseas operations will not be disadvantaged by Part 2 of the Bill.

[Lord Falconer of Thoroton (Lab) [V]]

I will first pick up on a point made by my noble friend Lord Hendy in the last group, which in fact relates to a group debated on Tuesday. It concerns the validity or otherwise of the point advanced by the Government: that they cannot make special exceptions for military personnel only suing the Ministry of Defence—in other words, treat them as if they are governed by the normal limitation periods—because there would be discriminatory concerns under Article 14 of the European Convention on Human Rights.

As I indicated on Tuesday, I disagree with that proposition, as does my noble friend Lord Hendy. It is significant for this group of amendments because real concern is being expressed by practically all of your Lordships—I say practically because the noble Lord, Lord Faulks, is not—about members of the military not being able to bring claims in accordance with what I describe as the “normal law”. I do not ask the noble and learned Lord, Lord Stewart of Dirleton, to respond to the legal point now, but I ask him to write to us indicating the legal basis for the proposition that you cannot have a provision stating that military personnel suing the Ministry of Defence will be governed by the ordinary rules of limitation.

The amendments in this group do two important things. First, the current proposal in the Bill is that the limitation period on civil claims should be

“the later of … the end of the period of 6 years beginning with the date on which the act complained of took place”,

or

“the end of the period of 12 months beginning with the date of knowledge”.

The position is that the claimant who discovers that they have a claim only at the end of six years has only 12 months to make that claim. The first amendment in this group from the noble Lord, Lord Thomas of Gresford, says that it should not be 12 months from the date of knowledge, but six years. I am sympathetic to that idea and I would like to know why a period of 12 months was chosen in relation to service personnel. I would be interested to know why, having regard to the circumstances that arise on overseas operations, the Government thought it appropriate to have what might be seen as a very short period.

The second significant amendment from the noble Lord, Lord Thomas, would add certain additional elements to what is meant by the “date of knowledge”. At the moment, the Bill treats you as knowing if you knew of the act complained of and that it was an act of the Ministry of Defence. The noble Lord, Lord Thomas, proposes amending Clause 11, so that you also have to know of the harm you suffered as a result of the act complained of. If, for example, the harm was mental illness, you might not know for some considerable time. In addition, the amendment says that you do not have to know only that it was an act of the Ministry of Defence, but that you might have a legal right to bring a claim too.

Taking the example given by my noble friend Lord Hendy, if you knew that your son was killed because of an act of the Ministry of Defence—friendly fire—but you did not know there was negligence and that you had a right to bring a claim, then knowing of the act complained of and that it was an act of the Ministry of Defence does not do you much good. These additional factors seem legitimate ones to take into account when considering what is meant by “date of knowledge”. These are important amendments and I am interested to hear the Minister’s answer.

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[Baroness Smith of Newnham (LD) [V]]

My Lords, I am glad to hear that the noble Lord, Lord Faulks, does not want to bias anyone; I am sure that is absolutely right and we are all on the same page on that. However, he talked of a public interest in having a period of limitation. Clearly, there is a public interest here, but there is also a private, individual one. The amendments in my name and that of my noble friend Lord Thomas of Gresford, try to get that balance right. The noble Baroness, Lady Chakrabarti, put the point very well by saying that we should not be talking about taking the role of the courts out of this entirely: there needs to be some discretion. Amendment 23 begins to rebalance this.

The noble Lord, Lord Faulks, is right that, clearly, there is a period in which people can bring cases but, if our previous set of amendments, which would extend the point from one to six years after the date of knowledge, were not accepted, we would need some mechanism that allowed a bit of discretion because, at the moment, there would be none for the courts. As such, Amendment 23 is desirable in its own right, but it is even more important if other amendments are not accepted, either now or when they are put forward by the Government, or when they are moved on Report.

Could the Minister give a further response on the date of knowledge? In opening his remarks on the previous set of amendments, clarifying a point he made on Tuesday, he said that the 94% of cases that were brought within—or what would be within—time were within six years not just of the incident but of the date of knowledge. If that is the case, does that not make it even more incumbent on the Government to look again at the date of knowledge as a relevant time point to have in the Bill—and not one but six years?

[Lord Falconer of Thoroton (Lab) [V]]

In effect, these amendments once again reintroduce the normal approach to limitation, which is that if you do not bring your claim within 12 months under the Human Rights Act or, if it is a personal injuries claim, within three years—based on tort or a breach of an implied contract—then the court can extend indefinitely, in effect, if it is just and equitable to do so. The courts have applied sensible approaches to those issues, and the longer you are away from the primary limitation period expiring, the better the reason you must have for extending the time.

The noble Lord, Lord Thomas of Gresford, made a very powerful point, asking why there should be special rules for the Ministry of Defence in relation to overseas operations. The answer that the Ministry of Defence gives is that military personnel involved in overseas operations should know—indirectly, because they will not normally be sued personally—that no litigation will arise from their conduct after a specified period, which is six years or one year from the date of knowledge, whichever is later.

That approach does not seem to me or veterans’ organisations to be legitimate in relation to claims being brought by soldiers or veterans in respect of negligence or breaches of human rights by the Ministry of Defence. Military veterans or existing soldiers should be subject to the same rules in relation to limitation as apply in any other claims. There is no evidence that the reassurance that individual members of the military are looking for—in relation to ongoing litigation out of overseas operations—is coming from fear of claims being brought by veterans against the Ministry of Defence for personal injuries caused normally by negligence on its part.

As such, in so far as the new rule about limitation in respect of overseas operations applies to prevent claims being brought by veterans or existing soldiers, I am against it. The proposal made by the noble Lord, Lord Thomas of Gresford, which, in effect, applies the normal rules, should be applied to veterans and existing soldiers who want to bring claims arising out of negligence or breaches of human rights in an overseas operation, just as much as if they bring a claim with the normal rules applying if the injury had occurred to them in the UK. The soldier injured by the provision of a negligent piece of equipment—body armour or a vehicle—can bring a claim with the normal rules applying if it happened on Salisbury Plain, but he or she cannot if the same act of negligence had occurred in an overseas operation. That is profoundly wrong.

[Lord Stewart of Dirleton (Con)]

My Lords, the limitation longstops provide service personnel with a greater level of certainty that they will not be called on to give evidence in court many years after an event. The uncertainty that the Bill proposes to address can have a significant effect on service personnel and veterans. It prevents them from drawing a line under certain traumatic experiences, always knowing that there is a possibility that the events of the past may be dug up again. This is why it is important to have finality and why the limitation longstops need to have a clear end.

In moving the amendment, the noble Lord, Lord Thomas of Gresford, asks for the policy that underlies this measure; that is the policy. For the reasons that I have discussed, it is important that limitation longstops have a clear end, one that cannot be overcome. Were it to be overcome by the existence of some residual discretion, such as the noble Baroness, Lady Chakrabarti, would seek to have imposed, that would negate the benefits to service personnel of greater certainty that they will not be called on to give evidence many years after the event. Let us remember that, in claims such as can be anticipated, it will most likely not be Ministers standing in the witness box and accounting for decisions taken; it is likely to be the very comrades of service personnel themselves.

Six years provides enough time to bring a claim: to echo the words of the noble Lord, Lord Faulks, it is a fairly lengthy period. The vast majority of service personnel and veterans already bring relevant claims within six years of the date either of the incident or of knowledge. As I say, giving discretion to the courts to allow claims after the expiry of the longstops will negate the benefits, and we want to provide service personnel and veterans with those benefits which flow from greater certainty.

The noble Lords, Lord Thomas of Gresford and Lord Faulks, adverted to a contrast with the situation that may arise in relation to Northern Ireland. That is indeed a special context, and, echoing the words of the noble Lord, Lord Faulks, this is a matter to be dealt with in separate legislation.

The longstops apply to all Human Rights Act and death and personal injury claims connected with overseas operations. We believe that six years is a sufficient period to commence proceedings, regardless of who is bringing the claim. Where claims cannot be brought within the relevant timeframe because the claimant was not aware that their injuries were caused by the actions of UK Armed Forces, the date-of-knowledge provisions help to mitigate any unfairness that might otherwise be caused.

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Moved by

[Lord Falconer of Thoroton]

26: Clause 12, page 8, line 20, at end insert—
“(1A) No order may be made by the Secretary of State under section 14 following consideration under this section unless a draft of the order has been laid before, and approved by, each House of Parliament.”Member’s explanatory statement
This amendment would require significant derogations regarding overseas operations proposed by the Government from the European Convention on Human Rights to be approved by Parliament before being made.

[Lord Falconer of Thoroton (Lab) [V]]

My Lords, this introduces a new topic, namely the purpose of Clause 12. Its effect is to impose, in relation to

“any overseas operations that the Secretary of State considers are or would be significant”,

that

“the Secretary of State must keep under consideration whether it would be appropriate for the United Kingdom to make a derogation under Article 15(1)”

of the European Convention on Human Rights. Why has that been introduced? Is it worthwhile? As noble Lords will know, when states sign up to the human rights convention they agree not to violate or take any steps in breach of it. States are entitled to derogate from the human rights convention:

“In time of war or other public emergency threatening the life of the nation”.


That is Article 15.1. No state has derogated from the convention due to war with another state. Most derogations have been in response to internal conflicts and terrorism. In these cases, states relying on the power to derogate have tended to rely on a

“public emergency threatening the life of the nation”.

The courts will give states a wide margin of appreciation when it comes to deciding whether there is a public emergency. The UK derogated from the human rights convention in 1970 following terrorist attacks relating to Northern Ireland, and in 2001 after 9/11.

As noble Lords will know, there are very considerable limits on derogating measures. First, states can take measures derogating from the human rights convention only

“to the extent strictly required by the exigencies of the situation”.

That is in the article itself. Secondly, states can never derogate from non-derogable rights; that is in Article 15.2. That means they can never derogate from Article 2 or Article 3, from the articles that prohibit slavery, or from the right not to be convicted of a criminal offence for acts which were not criminalised at the time, and nor can they subject people to greater penalties for a criminal act than existed at the time the offence was committed. What is more, derogations must be consistent with the state’s other obligations under international law. In the context of overseas operations, that means that we in the United Kingdom could never derogate from international humanitarian law.

To some people, new Section 14A might seem a recipe for the state to get away, in relation to overseas operations, from human rights obligations that have been unpopular in some quarters—absolutely not. In effect, all that the right to derogate does is to allow the state—in certain, very unusual circumstances—in practice to detain people without what would otherwise be regarded as a due process, because of the public emergency. Although there are other rights that could be derogated from, in practice that is the only one that would ever genuinely be in consideration in relation to the sort of situation we are dealing with in this Bill.

My concern is that Clause 12, which would add Section 14A to the Human Rights Act, is a totally phoney piece of human rights bashing by the Government, put in only to try to say that we are really “taking on the Human Rights Act” in relation to overseas operations. The only effect of this clause is that consideration would have to be given to the question of whether there should be detentions without trial. I cannot imagine circumstances in which a Government, if that was a possibility, would not consider it without the need for this clause.

I hope that the Minister will be able to reassure me that this is not a completely phoney and empty provision made for bad reasons. On any basis, if a derogation is considered and given effect to because of this clause, an explanation should be given immediately to Parliament, and it should be given effect to only with the approval of Parliament. That is why I put my name to the first of the amendments in this group. I beg to move.

[Lord Faulks (Non-Afl) [V]]

My Lords, the then Human Rights Bill came to Parliament without a Green Paper or a White Paper or any consultation paper preceding it. It did so shortly after the Labour Government came to power in 1997. Although there were no detailed debates in Parliament about the extraterritorial reach of the then Human Rights Bill, a number of concerns were expressed at the time about whether the convention —the ECHR—was really appropriate in the case of armed conflict abroad. There were those who took the view that there should be an express carveout in those circumstances, but that is not what happened. There was, however, a power in the HRA 1998—as it became—which permitted the Government to derogate from the European convention. It is important to note that the power was not used in Iraq or Afghanistan.

The inclusion in this Bill of an obligation to consider derogation might be regarded as rather unnecessary, since the power exists anyway. I suppose it might be considered to be part of the reassurance agenda vis-à-vis our Armed Forces. In any event, I respectfully ask the Minister about the Government’s interpretation of Article 15. I find it hard to disagree with much of what the noble and learned Lord, Lord Falconer, said about the right to derogate, and I ask her to clarify for the Committee the relevance of this obligation vis-à-vis overseas operations. My Amendment 27, which is supported by the noble and learned Lord, Lord Garnier, is an attempt to grasp a nettle. He would have liked to address the Committee but unfortunately is unable to do so.

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[Baroness Goldie (Con)]

The way in which I anticipate Clause 12 operating is that it is simply an ex facie reminder on the face of the Bill that a Secretary of State, if he were contemplating an overseas operation, should consider derogation. I suggest to the noble Baroness that thereafter, the existing law would govern whatever subsequent activity took place and whether or not the designated derogation order was deployed. The law is there and it is clear as to what is to be done. I think the acceptance of ministerial power to make these decisions is understood. As I have said before, that is with reference to parliamentary scrutiny, which has a very public capacity to call Ministers to account. I therefore merely ascribe to Clause 12 a reassurance that a Minister will give thought to this, but is not obliged to derogate.

[Lord Falconer of Thoroton (Lab) [V]]

[Inaudible.] The noble Baroness, Lady Chakrabarti, asked an incredibly clear question and I think the House is entitled to an answer. Would an exercise of the power to derogate in accordance with this new section of the Human Rights Act be judicially reviewable? Although the Minister gave a long answer, she did not answer the question directly. I can understand why she feels uneasy about answering it without a clear steer from officials, but I think it would be appropriate if she wrote to the noble Baroness, Lady Chakrabarti, and the rest of us with the answer to that very important question.

I thank the noble Lord, Lord Thomas of Gresford, the noble Baroness, Lady Chakrabarti, the noble and learned Lord, Lord Hope, and the noble Baronesses, Lady Whitaker and Lady Smith of Newnham, for their support for Amendment 26 or for the clause not standing part. I also note that the Minister said on behalf of the Government that they would consider the allure of the argument of the noble and learned Lord, Lord Hope, that this clause should not be part of the Bill at all. I am grateful for that and I think the House will be interested to hear her conclusions.

The speech of the noble Lord, Lord Faulks, was interesting but broadly irrelevant to Amendment 26 and whether the clause should stand part. I understood him to say that actually, the problems that have arisen in relation to overseas operations will never be addressed in any real form by any sort of possible derogation under the Human Rights Act, and that he could not therefore see what derogation has to do with the problems the overseas operations Bill is addressing. He then went on, in an interesting speech which I profoundly disagree with, to say that the problem is not whether or not derogation is possible but whether or not the Human Rights Act should extend to overseas operations generally.

The noble and gallant Lord, Lord Craig of Radley, absolutely put his finger on it when he asked the Minister, if derogations are not intended—if derogations cannot give combat immunity—what is the point of them? As the noble and gallant Lord pointed out, it is plain from what the Government are accepting has been said in this debate that combat immunity is not on offer from derogation. I strongly urge the Minister to drop this clause, because it is a pretend clause. It pretends that derogations can help with the problem this Bill seeks to address, when they plainly cannot.

I beg leave to withdraw Amendment 26.

[The Deputy Chairman of Committees (Lord Russell of Liverpool) (CB)]

Before we do that, does the Minister wish to respond?