Overseas Operations (Service Personnel and Veterans) Bill

Lord Faulks Excerpts

Committee stage
Thursday 11th March 2021 Lords Chamber

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

My Lords, it is a pleasure to follow the noble Lord, Lord Hendy, not least because he has helpfully set out the provisions in the Limitation Act to which I would have made reference. He also made reference to Section 7(5)(a) of the Human Rights Act, which deals with the limitation period for human rights claims.

The purpose of limitation periods is to provide that it is public policy that there should be an end to litigation, but some people have perfectly good reasons to delay bringing cases. It is important that any limitation period strikes an appropriate balance between those who bring claims and those who are the recipient of or witnesses to claims. There is plainly an interest in bringing an end to cases.

The noble Lord, Lord Thomas, suggests that there is a degree of bias as a result of the amendments to the limitation periods provided for by the Bill. I hope that that is not the case, because it is clearly not desirable. The additional provisions that are written into limitation periods specifically for our Armed Forces are questionable. The existing limitation periods under the Limitation Act and Human Rights Act are perfectly adequate to deal with the considerations that are specifically averted to in the Bill.

For example, Section 33 of the Limitation Act, to which the noble Lord, Lord Hendy, referred, recites various matters that should be taken into consideration. He helpfully drew the House’s attention to them. The relevant subsection begins,

“the court shall have regard to all the circumstances of the case and in particular to—”

and then the various factors are listed. There is a slight difference between having regard to all the circumstances, which is a general discretion, and identifying particular factors. The Bill superimposes factors, as it says that the courts must have “particular regard”. There is a difference between “particular regard” and “regard in particular”. I do not think that that is merely a lawyer’s point because, as I said during the debate late on Tuesday, it is important that, although these factors may reasonably be taken into consideration, there should not be any form of trump.

My view is that these additional provisions do not provide a bias, but it is important to allay even the risk of them seeming to provide a bias. With respect, I do not agree with the noble Lord, Lord Hendy, about amending the Human Rights Act on discretion. In fact, in the London Borough of Hackney v Williams in 2017, the Supreme Court said that the court should not rewrite the statute. The words of the statute, in both the Human Rights Act and the Limitation Act, give the court a broad discretion. That will inevitably include these matters—the importance of securing a claim, from the claimant’s point of view, being one of them. All the others set out in both the Limitation Act and the additions provided by the Bill should also be taken into consideration. It is not a trump card, but I understand the noble Lord’s concerns.

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

My Lords, once again, it is a pleasure to follow the noble Lord, Lord Hendy. In considering all these amendments, we should bear in mind that not all the claims that this legislation is concerned with—in fact, only a small proportion—are actually brought by veterans. The majority of the claims that have given rise to this litigation are brought by those who allege that they have been the victims of wrongs done to them by the military. One advantage of trying to put an end finally to litigation is that those members of the military who might be involved in this litigation, potentially as witnesses for the defendant or, indeed, for the claimant, can put an end to the matter in their minds. Nobody would be concealing anything deliberately but, once you have left theatre—overseas operations come to an end—it is a considerable burden to be troubled by some incident, about which there may be little corroboration or evidence, and to have to go to court, if necessary, to deal with allegations more than six years after the event.

These amendments are, of course, concerned with date of knowledge, and the legislation provides for an extension from the six-year long-stop period for date of knowledge. Incidentally, long-stop periods are not only in this Bill; they exist in other fields of law—for example, in the Latent Damage Act. As I said previously, and as the noble Lord, Lord Hendy, acknowledged, the date of knowledge is a difficult matter for courts, but they have shown themselves—helped by provisions in Sections 11 and 14 of the Limitation Act—able to find a proper response to difficulties that individuals may have in being aware that they have a cause of action.

The real issue is when the clock starts ticking. In the normal event, it starts ticking when the incident that gives rise to the claim occurs; in these cases, the possibility for litigation will end after six years, unless there is an extension of one year because of an extended date of knowledge. The provisions in the Limitation Act dealing with personal injury claims do not actually provide for a six-year period from the date of knowledge, as these amendments do; they provide at the maximum for three years. In other words, the clock starts ticking for three years after the incident occurs, in the normal case, and three years if there is a postponed date of knowledge. So this six-year extension is in fact wider than exists in conventional limitation periods for negligence cases. There is no equivalent of a date-of-knowledge provision in Human Rights Act cases; it is all dealt with under the provisions of Section 7 of the Human Rights Act.

One must be careful not to make too close a comparison between claims in negligence and claims under the Human Rights Act. As Lord Bingham said in a famous case, the Human Rights Act is not a tort statute. For the most part, these claims for personal injuries are much better brought in negligence. In fact, the claims under the Human Rights Act were usually advanced on the basis of an investigative duty that tends to be attached to these claims, which is one of the reasons why they were relied upon.

I respectfully suggest, although I understand what lies behind them, that these amendments go into territory that they should not go into and extend the period longer than it is desirable that anybody concerned in these types of cases should have to endure.

[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.

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

My Lords, I make it clear that I do not take the view, as the noble Baroness, Lady Chakrabarti, seemed to suggest, that we should not worry too much about limitation periods because this would impact more on victims who were not in the military. That is not my view at all and I do not think that I expressed it. I do not believe that there should be any distinction between categories of claimants on what the limitation period should be.

The question is whether, as a matter of public policy, whoever is the claimant, there is a public interest in litigation coming to an end. That is what underlies all limitation periods in all sorts of circumstances. Six years, which at the moment is the longstop, has been taken as reasonable, having regard to all the difficulties that may exist in bringing claims. However, the particular challenges of overseas operations, for whoever the claimant is, are such that that is a fairly lengthy period.

I do not believe that many of the claims that have been brought would in any way fall foul of either the primary period in negligence of three years or even the one-year period under the Human Rights Act. Six years is quite a long period. In my experience of personal injury actions in other fields, it is very unusual for a court, in its discretion under Section 33, to disapply limitation for such a long period, except in very unusual circumstances. Those circumstances tend to be in cases that are, in any event, covered by date- of-knowledge provisions—for example, latent disease or something of that sort. I am absolutely not concerned to bias anyone, but simply ask whether there is a public interest in there being an end to litigation.

The noble Lord, Lord Thomas, raised a good question about Northern Ireland. As I understand it, there is likely to be a separate piece of legislation dealing with Northern Ireland in due course and I wait with interest to see what that is. My feeling about the provisions on limitation remains the same. I am not entirely sure that they are necessary, because the existing limitation periods are sufficiently sensitive to deal with some of the injustices that could arise from late claims. This is part of the agenda that the Government have to reassure veterans. The idea that it is entirely designed to protect the MoD is a somewhat cynical response. Reassurance for the veterans is a not unworthy aim but not, I entirely accept, if it runs the risk of causing injustice. For the moment, I am not convinced that it does.

[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?

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[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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[Lord Dodds of Duncairn (DUP) [V]]

My Lords, I am very grateful for the opportunity to take part in this important debate. I thank the noble Lord, Lord Dannatt, and others for bringing forward Amendment 31 which would require the Government to

“establish a duty of care standard in relation to … support provided to service personnel”.

I believe that one of the most important duties of the state is to ensure that we do everything in our power to provide for the welfare and well-being of those who serve us all in the military and those who have served us in the past. That obligation also extends, of course, to their families. The recent move to give much greater statutory standing to the Armed Forces covenant, across the whole of the United Kingdom, is very welcome in that respect.

The amendment would create specific duties on the Government in relation to service personnel caught up in investigations and litigation on overseas operations. I have had the opportunity in recent times, in my capacity as a Member of Parliament, to meet with some of the ex-service men and women who have been involved in this type of case. Some of them spoke to me in the context of Operation Banner in Northern Ireland. This Bill clearly does not extend to that operation or to Northern Ireland and some of the issues relating to that were explored at Second Reading. We obviously listened carefully to the Minister’s comments during the passage of the Bill through this House and the other place and we look forward to legislation covering Northern Ireland very soon. I hope that the Minister can confirm that again today.

The experiences and feelings of the veterans that I spoke to in the context of Northern Ireland will mirror in many respects the concerns and anxieties of those who will be subject to investigation and litigation in respect of theatres overseas. It is the long process of investigation which causes most problems—a point that has been made by other noble Lords. Very often, those being investigated are elderly. The knock on the door, or the fear of the knock on the door, after many years out of service can be extremely upsetting and difficult to cope with. One spoke to me about his feelings of being very much alone, abandoned to his fate with no one to turn to, no one to whom he could really express his feelings or from whom he could seek sound advice. Those being investigated are suddenly plunged into a legal nightmare, with the potential for years of long, drawn out legal process.

I very much welcome the fact that the amendment talks about the duty of care standard in relation to legal as well as pastoral and mental health support. This is an extremely important aspect given the complexity of these cases and the passage of time. I also welcome the fact that the amendment covers civil as well as criminal claims and, for that matter, proceedings to do with judicial review. It is important that all these aspects are covered. There is a feeling that things are being looked at now with the benefit of hindsight and with the application of standards which were not applicable at the time.

There are often big financial implications. One person I spoke to cited a total lack of resources or capacity, compounded by ill-health, exacerbating the enormous stress and strain that had been inflicted on them and their family. One man who was undergoing very serious medical treatment was finding the financial as well as the medical implications very hard to bear. People feel extremely frustrated. There is understandable anger at the fact that they are being picked out or targeted in some way while, certainly in the case of Northern Ireland, many of those political voices championing prosecutions and investigations were themselves some of the biggest supporters of the abuse of human rights by terrorists and do not want any investigation into their nefarious activities.

Finally, the fact that the amendment covers the family of ex-servicemen and women and serving members of the military is also important. The families are vital and often feel the same level of stress and strain when such investigations are launched. I wish the amendment well and it has my full support.

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

My Lords, I have considerable sympathy with what lies behind the amendment moved by the noble Lord, Lord Dannatt, and supported by the noble and gallant Lord, Lord Stirrup. I cannot help thinking that it is a great pity that it was felt necessary to table the amendment at all. The reason for it, however, is the way in which we as parliamentarians and the law generally have let the military down; that is, after all, what this legislation as a whole is about. For there to be an obligation to state a duty of care standard of the sort envisaged by the amendment is a woeful acknowledgement of that. I do not think there is any equivalent in relation to our duty towards the fire brigade, the police or the NHS. Things have come to a pretty poor pass where we as a House can find so much to sympathise with in this amendment.

However, a statement to the House about the duty of care and how the standard of that duty should be reflected can do no more than state what the law is. As the noble Lord, Lord Dodds, just pointed out, there are specific provisions to deal with litigation and investigation, civil as well as criminal, and judicial reviews. But all a statement would do was say what the state of the law was. Depending on the passage of this Bill, there may be some, little or no change to the existing state of the law. What has repeatedly come through our debates is what lies behind so much of the understandable discontent: these repeated and late investigations.