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

Stephen Morgan Excerpts

Committee stage & Committee Debate: 7th sitting: House of Commons
Tuesday 20th October 2020 Public Bill Committees

[The Chair]

With this it will be convenient to discuss the following:

Clauses 9 and 10 stand part.

New clause 2—Restrictions on time limits: actions brought against the Crown by service personnel—

“Nothing in this Part applies to any action brought against the Crown by a person who is a member or former member of the regular or reserve forces, or of a British overseas territory force to whom section 369(2) of the Armed Forces Act 2006 (persons subject to service law) applies.”

This new clause amends Part 2 of the Bill so that it explicitly excludes actions brought against the Crown by serving or former service personnel from the limitations on courts’ discretion that the Part imposes in respect of actions relating to overseas operations.

For the avoidance of doubt, and so that we do not end up in the previous situation, I should say that if right hon. and hon. Members wish to speak to new clause 2, clauses 9 and 10, or part 2 of the Bill, now is the time to do so, although we will vote on them later.

[Stephen Morgan (Portsmouth South) (Lab)]

The fact that new clause 2 has to be tabled underlines one of the key problems in the Bill. As my right hon. Friend the Member for North Durham said, this Bill does not do what it says on the tin: it does not help to protect our armed forces personnel, but does the exact opposite. It limits our troops’ right to justice. It does not benefit them—in fact, it actively discriminates against them.

Unfortunately, this has been a long-running theme of the debate as the Bill has passed through the House. The intention of the Bill is one the Opposition are willing to work with, but the Government have got parts of it badly wrong; this part of the Bill, unfortunately, is a prime example of that. The Government cannot claim that the Bill benefits our personnel while legislating to limit the courts’ discretion to disapply time limits for actions in respect of personal injuries or deaths that relate to overseas operations of the armed forces. That is why this part of the Bill must be amended and improved.

New clause 2 would amend part 2 of the Bill so that it explicitly excludes actions brought against the Crown by serving or former service personnel from the limitations on courts’ discretion imposed by part 2 in respect of actions relating to overseas operations. The question must be asked: why are the Government explicitly trying to mitigate the ability of our service personnel to access a route to justice? Is that really in line with the spirit of the Bill? In the lead-up to Remembrance Sunday, are the Government really comfortable passing a Bill that will clearly limit service personnel’s rights?

In the evidence sessions, we heard a great number of warnings about this part of the Bill. More specifically, points were raised about the Government’s own impact assessment of service personnel privately claiming for their injuries. As the witness from the Association of Personal Injury Lawyers said,

“I think it will definitely have an impact. I do not think that the impact statement that has been released really explores it fully, because it ignores a large proportion of civil claims brought against the Ministry of Defence, which may include elements of overseas operations.

If I can give you just a quick example, the impact study does not take into account noise-induced hearing loss claims. These are complex claims that may involve exposure to harmful noise at any point of the serviceperson’s service, and at different points of overseas operations in different countries. The impact study that has been released ignores all of those claims. In the last year alone, I think the figures released by the Ministry of Defence suggested that 1,810 claims relating to noise-induced hearing loss were brought against the MOD.

My answer to your question is that I think there will be an impact, but we do not know the extent of that impact, and that needs to be explored further.”––[Official Report, Overseas Operations (Service Personnel and Veterans) Public Bill Committee, 6 October 2020; c. 54.]

That is a real point of serious concern. If the Government’s own impact assessment is flawed and has not fully taken into account the scope of the legislation’s impact, it is imperative that the Government take another look at this part of the Bill, to ensure that they have been fully and properly informed by their own impact assessments.

I repeat once again that Labour wants to work with the Government to get the Bill right, but at this stage there are enormous concerns that it is far from that. In addition, there are real, specific cases in which the Bill would clearly disadvantage our troops—not simply numbers on a page. Those include types of case such as the noise-induced hearing loss that the witness a fortnight ago referred to. That witness referred to a former marine who received £500,000 for noise-induced hearing loss on the claim that his hearing loss and tinnitus were caused by a negligent exposure to noise. He served in Northern Ireland, the Gulf and Afghanistan and was exposed to noise from thousands of rounds of ammunition, thunderflash stun grenades, helicopters and other aircraft, and explosive devices, and left the Royal Marines in 2012.

The marine was unable to make a claim for compensation until 2014, seven years after he first became aware that he had problems with his hearing. The MOD admitted liability and made no argument about the case’s being brought out of time. The time limit in the Bill, however, would have eliminated all aspects of the claim relating to the marine’s extensive service overseas. It is exactly examples of that nature that raise questions over the depth and quality of the Government’s impact assessment, as well as whether this part of the Bill is really in line with the spirit of the Government’s supposed intent.

The Bill clearly needs fixing, and the Government need to go back and look at whether they really are delivering on what they claim they want to achieve. I ask the Minister: is it the Government’s intention to allow cases such as the said case of noise-induced hearing loss to be ignored by the Bill? What steps were taken both to ensure the Government’s impact assessment was comprehensive and to mitigate any confirmation bias of the Government’s intent on the Bill?

This part of the Bill also has another clear issue: it risks breaching the armed forces covenant. Let us take a look at what part 2 of this Bill really means. The Limitation Act 1980 currently results in the armed forces community and civilians being treated equally when it comes to seeking a claim for personal injury. As it stands, there is a three-year cut-off point in place, but the courts retain the right to grant an extension to forces personnel.

Section 33 of the Limitation Act provides the court discretion to override the current three-year limit, but this Bill deliberately moves away from that and snatches away the ability of courts to show discretion if the case relates to an overseas forces action. It makes a deliberate change to the Limitation Act. That makes no sense. There are already structures in place to ensure that only appropriate claims are brought forward. Courts routinely manage out-of-time proceedings and frequently throw out cases where the delay is unjustified. The detailed criteria set out in the Limitation Act already address cases that do not have reasonable grounds or are unjustified. I put it to the Minister: why is he actively removing the aspect of the Limitation Act that offers courts the right to grant an extension in cases relating to armed forces personnel?

The Bill removes the ability of members of the forces community to bring forward a civil claim at all after six years, even where it would have passed judicial scrutiny. Under the Government’s proposed changes, civilians will retain the right to pursue a civil claim against their employer, but armed forces personnel will not. That clearly risks breaching the armed forces covenant. With that in mind, I am concerned that the Royal British Legion has said that the Bill constitutes a potential breach of the armed forces covenant—a deeply worrying conclusion from the largest armed forces charity in the UK. Are Ministers not concerned that the very Bill that they claim is devised to help our troops is said to be doing the opposite by such a distinguished organisation?

In addition, we heard from the Association of Personal Injury Lawyers that the Bill leaves our veterans with fewer rights than prisoners. That is a damning verdict, delivered by lawyers who devote their lives to representing our armed forces personnel. Our armed forces serve the nation with distinction; they deserve more than to have their rights stripped away. I take this opportunity to say to the Minister, “Do not dismiss the warnings of the Legion and APIL. Work with us to address them.”

I ask the Minister to clarify whether Ministers are concerned that the Bill they claim was devised to help our troops is said to be doing the complete opposite by such distinguished organisations as the Royal British Legion. Why is the Minister actively removing the aspects of the Limitation Act that offers courts the right to grant an extension in cases relating to the armed forces personnel?

Why are the Government willing to introduce a six-year longstop for troops but not civilians? Why are some medical conditions worthy of justice and not others? Are the Government really comfortable with passing a Bill that will clearly limit service personnel’s rights in the lead-up to Remembrance Day? Is the Minister content to allow cases of noise-induced hearing loss to be ignored by the Bill? Finally, what steps were taken to ensure that the Government’s impact assessment was comprehensive and to mitigate any confirmation bias to the Government’s intent with the Bill?