Overseas Operations (Service Personnel And Veterans) Bill

Peter Gibson Excerpts

2nd reading & 2nd reading: House of Commons
Wednesday 23rd September 2020 Commons Chamber

[Peter Gibson (Darlington) (Con)]

I am grateful to the Minister for bringing forward the Bill and for the fantastic work he does with veterans in our country.

Like many in this House, I have family who have served this country and put themselves at risk for our peace and security. In my view, it is essential that the Government take steps to protect our armed forces from a long shadow of vexatious claims. As our veterans return to the peace of home, we must ensure that they enjoy the peace of mind they deserve.

There has, sadly, been much misinformation circulating in advance of the Bill. The Bill is not a licence to torture. No one in this House would condone such behaviour. The is Bill is not an amnesty providing a window of immunity. The Bill has a very clear limitation period for the longstop of prosecution and litigation. Britain’s armed forces are held to the highest standards of conduct and international reputation. The Bill does nothing to undermine that, but simply serves to update the law in light of an increasingly litigious landscape.

As a lawyer, I have acted for both claimants and defendants in civil matters. Litigation is not an enjoyable process for any party involved. I can only imagine the distress, anguish and mental health problems that must arise in our veterans who are subject to claims long after they have concluded their duty and service. Just as they have protected us, and as they face increasing speculative litigation years after events, we must play our part to serve them and provide them with the peace that the Bill seeks to bring.

There will be those who worry, wrongly in my view, that the Bill will prevent genuine victims from using legal avenues of recourse open to them. That is not the case. As figures from the MOD reveal, over 94% of claims made within the past 15 years would have still been able to have been made within the time limits set down by the Bill. Our armed forces serve our United Kingdom with exemplary conduct in the toughest of situations. To suggest that the Bill will give them free rein to abuse established international treaties on conduct in warfare is dangerous and damaging both for our reputation and to our service personnel.

In conclusion, the Bill does not undermine the UK’s commitment to human rights, nor does it undermine our commitment to our international obligations. The Bill strikes a proportionate balance between the rights and wellbeing of our service personnel, and ensuring that genuine victims can access justice in a reasonable time. I believe we should support the Bill. I urge Members on all side of the House to support it and to show their support for our armed forces.

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

Peter Gibson Excerpts

Committee stage & Committee Debate: 1st sitting: House of Commons
Tuesday 6th October 2020 Public Bill Committees

[Peter Gibson (Darlington) (Con)]

I am a former member of the Association of Personal Injury Lawyers, who are one of the witnesses.

[The Chair]

Will the witnesses please introduce themselves for the record? We will start with you, Douglas.

Douglas Young: I am Douglas Young, the former chairman of the British Armed Forces Federation. I am still a member and a member of its executive council. I have been asked by colleagues to present evidence today on behalf of the British Armed Forces Federation. We did submit detailed responses to the Ministry’s consultation last year.

Michael Sutcliff: Good morning, everybody. My name is Michael Sutcliff. I am the chairman of a small group called the Armed Forces Support Group, based up in Lancashire. Our worries are a conglomeration of things. We are a signposting group, and questions have been coming in regarding the Bill. Basically, it is déjà vu—we are here again. This has happened a number of times, and we would like to know how confident you are of getting these things through.

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

Peter Gibson Excerpts

Committee stage & Committee Debate: 2nd sitting: House of Commons
Tuesday 6th October 2020 Public Bill Committees

[Stuart Anderson]

Q Mr Larkin, you did touch on it, but do any of you believe that the Bill provides a blanket amnesty in any way, shape or form for armed forces personnel?

John Larkin: I have given my view on that. The short answer is that it does not.

Professor Ekins: I agree with John.

Dr Morgan: I think “blanket amnesty” is a very overblown way of putting it, if we are talking of criminal prosecutions after the five years. It is establishing presumption, and that is what should be referred to. Having said that, the stronger the presumption is against prosecution, the closer it approaches that. The weaker the presumption is, the less protection it gives to the service personnel in question. So there is obviously a balancing act, but, as it stands, I do not see it as an amnesty; that is a misdescription.

[Peter Gibson (Darlington) (Con)]

Q If the Bill’s intent is to protect service personnel, what steps should be taken to improve the Bill as drafted?

Professor Ekins: To my mind, the major problem of the Bill—this is a major absence, but it would be quite a substantial policy change to introduce it—is that it does not really address the extraterritorial application of the Human Rights Act. That is the main driver behind some of the difficulties we have seen in the last 10 or more years in a whole range of ways. That includes requiring continued investigation and litigation—sometimes from enemy combatants relying on the Human Rights Act while UK forces have been in the field. The Bill could be improved—although, as I say, it would be a major change—by limiting the extraterritorial application of the Human Rights Act.

That would be, in a sense, restating the position that our senior judges understood before the European Court of Human Rights extended how jurisdiction was understood. I think that would also be much more consistent with the way in which Parliament understood the Human Rights Act when it was enacted in 1998. The ECHR and the Human Rights Act really have been extended by a series of problematic judgments, and a Bill on this subject could usefully roll that back. That might mean that the Human Rights Act simply applies in the United Kingdom, or alternatively—this may be more plausible as a prospect for enactment—it might allow for limited extraterritorial application, in the limited way that was understood to be possible in 2003 when the European Court of Human Rights gave a significant judgment on the point, as well as by the House of Lords and the Supreme Court in the years to follow. That would address the problem of being unable to stop investigations and being exposed to litigation that requires the continuation of investigations, when the Government think that that is unfair to the personnel. The Bill does not address that—save, perhaps, by encouraging Ministers to derogate from the ECHR.

John Larkin: There is a lack conceptual clarity in part 1—[Inaudible.]

[The Chair]

Mr Larkin, we are sorry but we are not hearing you very well. Do you want to try to speak a bit closer to your microphone?

John Larkin: There is a lack of conceptual clarity in part 1 of the Bill with respect to the prosecutorial task. As the Committee will know, the prosecutor’s task breaks down into two parts. First, they ask themselves whether the evidential test is met. If it is, they consider whether a prosecution would be in the public interest. That is the approach taken in all three UK jurisdiction—[Inaudible.]

[The Chair]

We are still struggling, I am afraid.

John Larkin: Clause 1 of the Bill puts no time limit on assessment of the evidential test. But then, when one looks at clause 3, subsections (1) and (2) tend to reduce the person’s culpability. Culpability is at the core of criminal liability—it is synonymous with criminal liability. There may be value in amending the Bill to permit the prosecutor to take a global view.

The Public Prosecution Service for Northern Ireland, in its code for prosecutors, permits the public prosecutor to take a view based on the public interest test, sometimes—exceptionally—in advance of full consideration of the evidential tests, so if one has a sense from the beginning that the case is going nowhere, one should not have to go through what might seem to be a very empty exercise of none the less carrying out the evidential test in full. There could be an expressed power, by amendment, given to prosecutors to determine in advance of consideration of the full evidential tests. As you rightly note, clause 3(1) sits ill with clause 1’s exception of the evidential consideration.

[Peter Gibson]

Q Can the witness write to us with his answer to that? It was not entirely audible to us here in the room.

[The Chair]

Are you happy to do that, Mr Larkin? We did not hear all of what you said. Members may have got the general thrust of what you were saying, but we did not get the detail.

John Larkin: I am happy to do that. It is a technical point, so it might be of assistance to Committee members if it were reduced to writing.

[The Chair]

Thank you for that.

[Peter Gibson]

Q Thank you, Mr Larkin. I will ask the same question to Dr Morgan.

Dr Morgan: I would approach the question in two ways. One would be, “How would I improve this Bill?” and the other would be, “What would I do if I was starting with a blank sheet of paper?” You would get two quite different answers, but I will start with the second one.

[Peter Gibson]

Let us have both approaches.

Dr Morgan: Okay. To start with the second one, it seems to me that the problem in this area is lawfare or the judicialisation of war—whatever you want to call it. The extension of the European convention on human rights into this area as a result of the European Court’s decision in Al-Skeini, and the decision of our Supreme Court in Smith v. Ministry of Defence, which confirmed that and extended the law of tort into the battlefield, led to the erosion of combat immunity. To me, that should be the priority for any legislation on this difficult and multifaceted problem.

The section of the Bill that partly deals with the issue is the derogation provision and the duty on the Minister to consider derogation. It is not a duty to derogate; it is a duty to consider doing it, which is putting into statute the Government’s policy. It seems to me that that is valuable, although it does not change very much.

In its consultation paper published in June 2019, the Ministry of Defence said it was going to look at restatement of combat immunity, hand in hand with a no-fault compensation scheme for service personnel to pay damages on the full tort measure. Those two things should go together. I regret that last month, in reply to the consultation, it said that legislation on the issue is

“not being taken forward…at this time.”

I think it should be. The priority should be to restate combat immunity and, hand in hand with that, to have no-fault compensation for service personnel on the full compensation measure that you get if you bring a claim in law.

If that were done, it would help with the problem about the shorter limitation periods for tort claims—damages claims—that was raised several times at Second Reading. The British Legion has been quoted several times saying that that breaches the armed forces covenant. I do not want to get into that particular debate, but there is no question that service personnel might, in some fairly unusual situations, find their ability to bring damages claims caught by the proposals in part 2 of the Bill as it stands.

If the Ministry of Defence took forward the proposal that it called “Better combat compensation,” to have full compensation through the armed forces compensation scheme, those worries would fall away. If there was full compensation available without the need to bring a tort claim or negligence action against the Government, any limitations on the time periods for bringing tort claims would be an irrelevant question for service personnel.

Those are two reasons why I would revive what seems to have been the Ministry of Defence’s approach at one point, which was restating combat immunity and ensuring full, no-fault compensation. If you want me to give more detailed comments on the provisions of the Bill I can do that, but I would approach the issues in a quite different way than in the Bill that we have.

[Mr Jones]

Q In the case of no-fault compensation, would that then be within the existing armed forces compensation scheme? How would you change that?

Dr Morgan: The proposal to make that switch is in the joint paper produced by Richard Ekins, Tom Tugendhat and myself that I mentioned at the start. We said in that paper that that there is a case for having a more generous strand within the armed forces compensation scheme applying to those soldiers who cannot bring tort claims at law. In other words, if Crown immunity in warfare were to be revived—the Government already have the statutory power to do that, they do not need an Act of Parliament—and it was decided that you cannot bring claims at all, there would be a case for having a more generous approach within the armed forces compensation scheme to those people. I would not necessarily say the whole armed forces compensation scheme should be upgraded—I am aware of how expensive that would be. If we are going to restrict tort claims of a certain sub-category of injuries to service people, then it would be a good idea to balance that out by having full compensation.

--- Later in debate ---

[Stuart Anderson]

Q If they are successful, what percentage is taken from the soldier’s claim, on average, for the solicitors?

Ahmed Al-Nahhas: It depends on the terms offered by the lawyers. They can vary, typically between 15% and 25% of the damages that are recovered. There are certain caps, but that is typically what you might find in the industry.

[Peter Gibson]

Q I have two quick questions for Ahmed. In terms of the claims that you have brought for veterans, how many times have you had to use the dispensation of limitation under section 33? And are you able to share with us your success rate in terms of the claims that you win and those that you lose for veterans?

Ahmed Al-Nahhas: As I am representing APIL, I would not be able to share specific numbers, but I am very happy to share my experiences on section 33. I would say that it is a small fraction of cases that are pursued that will have to rely on section 33.

[Peter Gibson]

Q Just to put some data on that, how many claims does a small fraction look like in practice, over a period of 15 years?

Ahmed Al-Nahhas: To give you an idea, it may be that two out of 100 cases that we manage would be at risk of being out of time—maybe 5% at most. On whether or not you succeed with a section 33 argument, well, the only time I went to court on a section 33 argument, I lost. I took it to the Court of Appeal, and I lost there, too. I think that might indicate to you how difficult it is to succeed there. The judges really do not engage in a liberal application of section 33.

As a lawyer, if you are partaking on a case that is out of time, you need to be brave, and it is very rare. Often or not, in some of these cases where there is a section 33 argument, they may be settled along the way, but the fact that the claim is out of time might be a factor that affects the settlement figure. I hope that answers your question.

[Peter Gibson]

Q Thank you. So it is incredibly rare that you would need to use section 33.

Ahmed Al-Nahhas: In answer to your direct question, yes, it is incredibly rare that you use it, but that is dependent on the lawyer and whether they are willing to take on riskier cases. On the whole, it is not something that lawyers engage in easily. But the key about section 33 is that you will come across those cases, like the one I explained earlier involving the widow of the serviceperson, where they are demanding justice. They are worthy cases, and you use section 33 because that is the flexibility in the system. That is the conduit through which judges can achieve justice, even if you are out of time.

[Peter Gibson]

Q My second question is about success and failure. How many cases do you win and how many do you lose?

Ahmed Al-Nahhas: That depends on the definition of win. What is interesting is that most of the claims—civil claims in this area—will tend to settle. The MOD will publish, with the same document I mentioned earlier, the figures in respect of settlements that it pays out. I think that last year it spent £131 million in respect of compensation and legal costs. I do not think it has separated what is legal costs—

[Peter Gibson]

Q I am trying to establish in how many cases you succeed in recovering compensation and in how many you do not. Obviously, one subsidises the other. Are you able to share those percentages with us?

Ahmed Al-Nahhas: I could not give you an accurate estimate here. I am a representative of APIL, representing hundreds of solicitors across the country in this field. It may be that I can provide written evidence, if that would assist the Committee.

[Peter Gibson]

That would be welcome, thank you.

Ahmed Al-Nahhas: Of course. I am sorry that I could not assist you immediately.

[Stuart Anderson]

Q I have a supplementary question about a no win, no fee where a young rifleman has a previous injury. If you or the other solicitors do not deem it to have a good chance of success—those were your words—how would a young rifleman fund his legal case?

Ahmed Al-Nahhas: I have no idea. They may need to rely on charity. They may need to rely on family. They have very limited options. Actually, they often have a big challenge: they need to find a specialist in this field to begin with, because it is not easy to sue the Ministry of Defence and it is not easy to understand the specialties and complexities of such cases. They will often go to another lawyer for a second opinion, and one hopes that that lawyer would take on their case, but there are no guarantees, and particularly on cases that are out of time. You may be going around the houses to tens of lawyers who will all say to you, “I’m really sorry, but you are out of time. There is nothing I can do for you.” That is one of my concerns with the Bill.

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

Peter Gibson Excerpts

Committee stage & Committee Debate: 3rd sitting: House of Commons
Thursday 8th October 2020 Public Bill Committees

[The Chair]

I am going to call Peter Gibson on a supplementary and then I will come to you, Mr Anderson.

[Peter Gibson (Darlington) (Con)]

Q Charles, given that your principal objection to the Bill as it is drafted is in respect of your perceived view that it breaches the armed forces covenant, can you give us some examples of how you think that might manifest itself?

Charles Byrne: I think this is a point we have covered previously, so forgive me if I repeat myself. I think it is the same sort of question. We have seen the evidence that there are 19 cases where veterans’ families would not be able to bring a claim against the MOD because it would fall out of the proposed six-year time limit after the point of knowledge and all those other caveats. Those are the examples that we think would follow from the Bill and that is only of the ones that we know, and the ones where the data exists, for Afghanistan and Iraq.

[Peter Gibson]

Q How would you propose to improve the Bill, if we were to improve the Bill, to rectify that? How would that be done?

Charles Byrne: That is a good and fair question, which the Minister has also asked us, to which we say, in fairness, that we think that is your job. It is our job to try to point out where it can be improved, but not how. That is a bit unfair, but that is the way it works.

[Stuart Anderson]

Q This is the first Bill Committee that I have sat on as a new MP, and I have watched the process get to where it has got to already, notwithstanding the years it has taken to get to this stage. On Second Reading, and even in our last witness session, there were multiple calls to stop the Bill. If we produced a Bill that had everything in it that the British Legion has asked for, there would still be an organisation against the Bill. I saw on Tuesday that, broadly, veterans are in favour, legal firms are not. I am trying to figure that one out and I am sure I will get there in the end. What will the impact be for the veteran community if the Bill does not pass Third Reading and come into law? I ask that to General McColl first. If the Bill is stopped, what will the impact be on the veteran community?

General Sir John McColl: Both Charles and I started off this hearing by saying that we welcomed the intent of the Bill. What veterans want to see is the pernicious harassment of veterans following operations by the legal profession stopped. If the Bill achieves that, they would regret the fact that it had been stopped.

I accept that there may be some trade-offs in doing so. Whether or not it is a breach of the covenant, there will be roughly 6% of people who may have brought cases against the MOD or the Government who can do so now and who will not be able to do so in future. We would wish to see that ameliorated. We would wish to see that in some way worked around. It is up to the Government to see if they can do that. The bottom line—I think that is what your question is getting at—is that we want to see harassment stopped. There may be some compromises required in doing that.