Overseas Operations (Service Personnel and Veterans) Bill

Over the past 20 years, in the field of criminal law and procedure, the victim has been put at the forefront. I think it was the noble and learned Baroness, Lady Scotland, who emphasised that, in particular when she was Attorney-General. Everything has been done to try to make it easy for victims in criminal courts to complain in the first place—not least in cases involving sexual offences. Special measures have been introduced to that end.

In dealing with civil claims by victims, the thrust of this Bill is entirely to reverse that position. The concentration is now on fairness to the alleged perpetrators of the acts from which the victims suffered and which are the foundation of their claims. Special weight must be given to a declaration by a serving soldier or veteran of the possibility that his memory will be affected and his comfort zone invaded by the stresses and strains of giving evidence about things he would prefer to forget. This is so even if the victim happens to be a fellow service man or woman. It is not even as if this hurdle is placed on people because they are foreigners whose country we have invaded in order to save them from the particular regime under which they are suffering. It would of course be disgraceful if such a distinction were ever made between service victims and foreign victims. So what is the rationale for these provisions which introduce factors to alter the balance of which the noble and learned Lord, Lord Thomas, spoke, and weigh down in favour of the MoD?

On Tuesday, I spoke about vexatious claims. I pointed out that I witnessed an Iraqi woman withdrawing her claims of sexual assault and admitting in court that they were false. There were vexatious claims, stirred up by English lawyers for their own gain. Our legal system is robust and it dealt with the claims by striking them out and by disciplinary actions against the lawyers concerned which effectively removed them from circulation.

But not every claim brought by a victim is vexatious. We have to face the fact that some are legitimate. As I said on Tuesday, my Written Questions to the Minister on 2 June 2020 revealed that, since 2003, 1,330 claims arising from the treatment of foreign victims by British personnel had been accepted and £32 million paid in compensation. The Answer to my Questions also revealed that not a single serviceman, however responsible he might have been for the victim’s claim, has had to pay damages or compensation out of his own resources. The MoD has covered them all—and it claims that it does not settle claims which it does not believe to be meritorious.

If we look elsewhere for confirmation, in its final report published on 9 December 2020 entitled Situation in Iraq/UK, the prosecutor for the International Criminal Court concluded that the information available provides

“a reasonable basis to believe that … members of UK armed forces in Iraq committed the war crime of wilful killing/murder … at a minimum, against seven persons in their custody. The information available provides a reasonable basis to believe that … members of UK armed forces committed the war crime of torture and inhuman/cruel treatment … and the war crime of outrages upon personal dignity …against at least 54 persons in their custody.”

The prosecutor also found that there was a reasonable basis to believe that there were seven victims of sexual violence. It is impossible, regrettable as it may be, to dismiss the claims brought by victims as being vexatious. As a civilised country, we must face up to that fact and ensure as far as we can that the disciplines are in place which prevent these things happening.

Without further ado, I shall make way for my noble friend Lord Hendy, who I understand has direct experience of representing at least one veteran’s mother.

“shall have regard to all the circumstances of the case”.

In particular, it must have regard to certain specified factors:

“(a) the length of, and the reasons for, the delay on the part of the plaintiff; (b) the extent to which, having regard to the delay, the evidence adduced or likely to be adduced by the plaintiff or the defendant is or is likely to be less cogent than if the action had been brought within the time”

limits set out in the Act;

“(c) the conduct of the defendant after the cause of action arose, including the extent (if any) to which he responded to requests reasonably made by the plaintiff for information or inspection for the purpose of ascertaining facts which were or might be relevant to the plaintiff’s cause of action … (d) the duration of any disability of the plaintiff arising after the date of the accrual of the cause of action; (e) the extent to which the plaintiff acted promptly and reasonably once he knew”

he might have a claim; and, finally,

“(f) the steps, if any, taken by the plaintiff to obtain medical, legal or other expert advice and the nature of any such advice”.

If the Minister is not minded to concede the modest amendments sought, I commend to him altering the Bill to incorporate these familiar provisions of the Limitation Act, which has worked well in all manner of cases over the last 40 years. No justification appears for imposing harsher limitation provisions for actions in respect of personal injuries or death that relate to overseas operations of the Armed Forces.

This provision in the Bill may save the MoD a few bob, but it will give no reassurance to military personnel who are claimants or to members of their families, such as the lady for whom I acted some years ago, as I explained at Second Reading. Her son had been killed by a shell fired at his tank by another British tank outside Basra. The claim was based on the MoD’s failure to fit the tanks with adequate and available identification kit and to adequately train tank commanders. The case was ultimately settled by the MoD, after many years.

The noble Baroness, Lady Goldie, kindly wrote to me after Second Reading to explain the time limits proposed in the Bill for cases such as this, but I regret to say that, in spite of her clarity in elucidating the Bill, I was not reassured. Military personnel on overseas operations need to know that they—and, if they die, their mums, dads and children—can make a claim against the MoD, if it turns out to be at fault. They should not be subject to hurdles to which other claimants are not subject. The Government need not fear vexatious claims. Anyone who has practised law in this field from bench or bar knows that the courts are astute enough not to permit vexatious claims. The Bill, unamended, will time-bar some vexatious claims, but it will equally time-bar meritorious claims. That is not forgivable. It is no answer to say that there will be few of them; there should be none.

A final point arises from an argument advanced by the Minister in response to Amendment 29, moved by my noble and learned friend Lord Falconer, late on Tuesday night. The Minister suggested that the amendment would result in an unjustifiable difference in treatment between different categories of claimants and that this, therefore, would offend against the European convention. Presumably he had Article 14 in mind, which prohibits discrimination on grounds including “other status”.

Yet these provisions in the Bill impose a difference in treatment between those making a claim for personal injuries or death that relate to overseas operations of the Armed Forces and those who make such a claim that does not relate to overseas operations of the Armed Forces. I and, it appears, many Members of your Lordships’ House regard that as unjustifiable. I would be interested to hear how the Minister justifies that difference in treatment under Article 14 or, indeed, Article 2, which protects life by law.

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.