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

Debate between Peter Gibson and Stuart Anderson

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

[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.

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

Debate between Peter Gibson and Stuart Anderson

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.]

--- 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.

--- Later in debate ---

[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.