HC Deb 24 April 1987 vol 114 cc925-43

Not amended (in the Standing Committee), considered.

Order for Third Reading read.

11.46 am
Mr. Churchill (Davyhulme)

I beg to move, That the Bill be now read the Third time.

I would like to thank my supporters in all quarters of the House for their help, above all, in passing the Bill through the House without amendment. I should particularly like to thank my hon. Friend the Under-Secretary of State for the Armed Forces and all the officials in his Department for the tremendous help that they have afforded me as a Back-Bench Member in preparing the Bill and piloting it through Parliament.

The Bill will confer clear benefits on all members of the armed forces who in future suffer injury or death in peacetime in the course of their duty, as a result of negligence by another. Once the Bill is passed, they will be on an equal footing with civilians and will no longer be discriminated against in terms of compensation for themselves or their dependants.

However, even after the Bill, for at least one category of injury or death proper compensation will not be available. I should like to address this point before the Bill moves to another place. This case is one of pure accident, where no one could be held to have been negligent and where the individual concerned was not regarded as having caused or contributed to his injuries.

One such case would be that of Sergeant-Major Ken Yeoman, who was a senior non-commissioned officer and an instructor with the Red Devils at Aldershot. He is known to several hon. Members because he was one of the instructors for the group which came here to do a charity jump some five or six years ago in aid of the Airey Neave Memorial Trust and cancer research.

Shortly after that, the parachute of a soldier who was taking part in a jump failed to open. Sergeant-Major Yeoman, who jumped from the aircraft in the same stick of parachutists, immediately realised the problem and, regardless of his own safety, grabbed his colleague and held on to him with all his strength. By his exemplary bravery he saved his comrade's life but, sadly. at terrible cost to himself. As a result of the injuries that he received on landing, Sergeant-Major Yeoman was medically discharged from the Army and will be in a wheelchair for the rest of his life. Some months ago, we had the pleasure of entertaining him at the House.

According to the legal advice that I have received, although I am no lawyer, even if the Bill had been enacted at the time of that incident, Sergeant-Major Yeoman would not have qualified for compensation because his injuries were not incurred through negligence but, it would be claimed, voluntarily in that he could simply have allowed his comrade to fall to his death while landing safely himself. However, his colleague, whose injuries were only minor, may have been able to sue the packer or manufacturer of the parachute for negligence and obtain compensation under the terms of this legislation.

That case outlines a clear gap that will exist in the framework of compensation which is available to members of the armed forces, even after the passage of the Bill. In those circumstances I ask my hon. Friend the Under-Secretary, who has been able in his handling of the Bill and helpful to the Committee and myself in assisting its passage through the House, to ensure that full consideration is given to the possibility of providing an insurance policy which would cover all members of the armed forces and guarantee full and comparable compensation in cases such as the one that I have described where negligence cannot be proved. The number of such cases in any year would be tiny, so the cost of the insurance policy to the Ministry of Defence would be small.

I am sure that the Minister and the House would agree that it is unacceptable that members of the armed forces who risk or sacrifice their lives to save those of their comrades should be placed at a serious disadvantage in terms of compensation. Such courage, self-sacrifice and comradeship are qualities that are to be found in a greater measure in members of Britain's armed forces than in any others. Their qualities are of inestimable value in battle and can be decisive in the outcome, as we saw in the brilliant exploits of 2 Para at Goose Green against an enemy three times its number which was dug into defensive positions. Such qualities go to the heart of the high calibre and morale of Britian's armed forces and are to be encouraged. I trust that the Minister will find a way of doing that.

In Committee, the case for retrospection was discussed at some length. I am the first to acknowledge the debt that is owed to those outside the House who have campaigned for so long to secure the abolition of section 10 of the Crown Proceedings Act. I am delighted that their efforts are on their way to a victorious conclusion. But I also recognise the bitter disappointment that there must inevitably be among what has become known as the section 10 victims and their dependants that this Bill is not to be—in my view, cannot be— retrospective.

It is true that Parliament has traditionally resisted retrospection but it is also true, as was so forcibly argued by the right hon. Member for Stoke-on-Trent, South (Mr. Ashley), that there have been several notable exceptions to that rule. Those exceptions almost invariably have been to confer a retrospective benefit rather than, as would be the case if this Bill were to be made retrospective, to impose a retrospective liability. For this reason, I accept that the Bill cannot be retrospective.

An example is the hypothetical case of a corporal who 30 years ago may have caused or contributed to the death of a comrade through an act of negligence. Would it be right, even in the interests of providing better compensation for the victim or his family, that after so many years that corporal should face the ordeal of having the whole matter reopened and find that he now has a legal liability for his actions of 30 years ago when none existed at the time of the incident?

I make no apology for repeating once again that the Government. having acknowledged the injustice of section 10 as it has operated in recent years, by their decision to abolish it have, by the same token, recognised that members of the armed forces killed or injured in peacetime in recent years have received inadequate compensation compared to what would be available to their civilian counterparts. In so doing, the Government have made an unanswerable case for reviewing those past cases and ensuring fair levels of compensation. This is why I urge my hon. Friend the Under-Secretary to explore with his colleagues the possibility of establishing a compensation fund of at least £100 million, as was done some 10 years ago in the case of the victims of pneumoconiosis in the mining industry. Such a fund would be administered by a tribunal to which those who have been inadequately compensated, or who in some cases have received no compensation at all, may apply for an ex gratia payment.

I cannot fail to refer to the largest category of those who have received no or inadequate compensation — the victims of Britain's nuclear test programme. The Minister assured us in Committee that the report of the National Radiological Protection Board, which was due by the end of last year, will definitely be available before the end of this year. In the event that the report shows, as many of us are convinced it will show, that among the 20,000 British service men who took part in those test programmes there is a significantly higher than average incidence of cancer, leukaemia and other radiologically induced diseases, I find it inconceivable that the Government would not wish to move swiftly to provide full and fair compensation for those whose health has been destroyed in the course of their service to their country.

An assurance by the Government in this regard would be most welcome, especially by those families who in recent years and to this day have had, or are having, to endure the horror of seeing a husband or a father become a living skeleton and die in terrible pain and distress. I ask my hon. Friend the Minister and his colleagues to consider seriously the obligations that we have to this category of British ex-service men. If I have been able to play some small part in remedying a serious injustice to our service men in the years ahead, I will be only too delighted.

I pass this Bill, I hope with the approval of the House, on to their Lordships' House and into the capable hands of my noble friend Lord Gisborough. I am highly confident that he will carry the Bill forward to the statute book. I am confident that in the years ahead the Bill will provide the proper levels of compensation that all of us, in all quarters of this House, wish to see for those who serve their country so selflessly and well.

12 noon

Mr. Jack Ashley (Stoke-on-Trent, South)

I congratulate the hon. Member for Davyhulme (Mr. Churchill) on his admirable efforts on behalf of the Bill and on his successful navigation of the Bill through the shoals and reefs of the House of Commons.

This Bill is a notable landmark for the armed forces and sweeps away the injustice and discrimination against them. It gives historic new rights to the armed forces to sue for negligence. That means that service men and women who risk or give their lives in our defence will exercise the same rights as the rest of society — the right to deter negligence and the right to take legal action if negligence occurs that results in their disability.

If I may enter a caveat, I am rather sorry that the hon. Member for Davyhulme did not pay adequate tribute to the campaigners for the Bill. Quite honestly, we would not have this Bill without the efforts of Mrs. Carol Mills of the Section Ten Abolition Group, Ken McGinley and Sheila Grey of the British Nuclear Test Veterans Association, Tom Armstrong of the British Atomic Veterans Association and all their colleagues. This Bill is the result of their persistent efforts. I believe that many of us would concede that, without their efforts, we would not have the Bill. Time and again the Ministry of Defence has opposed the proposals put forward by the campaigners — Members of this House and people outside. Thus the Bill is a tribute to their efforts as well as the efforts of the hen. Member for Davyhulme.

For some years those campaigners faced a lengthy and determined rearguard action by the Ministry of Defence, but they prevailed because they had justice on their side. However, the Secretary of State and the Under-Secretary have always given us an extremely fair hearing. I am delighted at the decision that they have made, and I warmly welcome and support the Bill.

The hon. Member for Davyhulmc has mentioned retrospection. I must tell the Minister that I feel passionately angry that those service men and women already disabled by negligence are excluded from the Bill. It is wrong that they should be excluded; they should have been provided for. The hon. Member for Davyhulme was right to refer to retrospection because, by excluding such people, we are perpetuating an injustice. We simply cannot allow them to be excluded from this Bill; something must be done for them.

I am extremely glad that present members of the armed services are to have new rights, but we cannot exclude those people who have been disabled as a result of negligence and who are now suffering. Something must be done for the atom test veterans and all those people already disabled.

The Bill is a base on which we intend to build to provide rights for people, including atom test veterans, who are already disabled. I see this Bill as a launch pad from which we intend to campaign for justice for those service men and women already disabled. That battle will be fought in this House, in the House of Lords and outside Parliament. It is a battle that will be won.

I commend the Bill to the House. I am delighted with the new rights, but I give clear warning that this is only the beginning of a new campaign to secure these rights for service men and women who are already disabled. That campaign begins today and will be continued until it is successful.

12.5 pm

Mrs. Virginia Bottomley (Surrey, South-West)

I congratulate my hon. Friend the Member for Davyhulme (Mr. Churchill). I was fortunate enough to support him in a private Member's Bill last year when he was equally lucky in the ballot but his Bill did not reach the statute book. On this occasion my hon. Friend had the wisdom and good fortune to pick an issue on which there is all-party agreement to redress a grievance which came into being out of good will and good intentions in 1947. It is clear that the intention then was not to discriminate against service men. Conditions and circumstances were different then. We hope that this measure will lead to the further diminution of Crown immunity in many other settings.

I also congratulate the right hon. Member for Stoke-on-Trent, South (Mr. Ashley) on all that he has done. :I certainly endorse his remarks about the Section Ten Abolition Group. I became involved through a constituent in Haslemere who approached me two years ago. Since then I have followed the matter closely and I attended the launching of the Section Ten Abolition Group at a meeting in the House of Commons. I took up my constituent's case with the Minister and his predecessor. It is broadly accepted that there is no justification for service men and women being treated differently from their civilian counterparts who risk their lives or are killed.

I hope that the Bill will not lead to many court cases. I cannot help but observe that there seems to be no human adversity or misery that does not benefit the legal profession. There can be no justification for continuing the previous regime.

I warmly support what my hon. Friend the Member for Davyhulme said about the establishment of a special fund. I accept the argument about retrospection. A retrospective benefit is one thing but to impose liabilities on another service man retrospectively could be damaging and lead to great difficulties.

My constituent to whom I have referred has, I am sad to say, died. His family tell me that his wish was that present and future service men should not suffer as he did.

The battle has been well fought. A special fund administered by a tribunal to ensure fair treatment to the injured seems satisfactory and reasonable.

I wish the Bill well. I hope that it manages to complete the course speedily, in view of other matters on the horizon. I congratulate once more my hon. Friend the Member for Davyhulme, the Minister and all those who have helped to bring to an end an unjustifiable injustice.

12.8 pm

Sir Antony Buck (Colchester)

I represent a garrison town and I am chairman of my party's defence committee. I congratulate my hon. Friend the Member for Davyhulme (Mr. Churchill). It is pleasant to see the House working well across party lines in such a matter. I ask the Minister to consider the possibility of helping further categories of people.

I do not object to retrospective legislation that confers a benefit. If a way can be devised to help those who have been injured in the past, without infringing the principle that it should not create retrospective obligations or liabilities, there can be no objection to retrospective legislation. I congratulate my hon. Friend and the Members of the Opposition who have brought forward the Bill, and I hope that it will have a speedy passage through its remaining stages.

12.11 pm
Mr. Spencer Batiste (Elmet)

I join my colleagues in congratulating my hon. Friend the Member for Davyhulme (Mr. Churchill) on bringing before the House a Bill that rights a serious grievance that has existed for too long.

I should declare an interest, in that I am a solicitor. When I first qualified, one of my first major jobs was representing a service man who had received serious spinal injuries in a car accident while being driven by a colleague in the forces. It was only the fact that the accident occurred while they were off duty that entitled my client to what were then record damages. It has always seemed to me utterly anomalous that, if the same accident, in the same circumstances, with the same people, had happened while they they were on duty, the man would have had no access to the courts for damages of that kind.

I warmly congratulate my hon. Friend on his skill in steering the Bill thus far. As a solicitor, however, I think that the skill that he has demonstrated has been marred by his off-the-cuff comments about lawyers who operate in these areas. Although I have not practised in this area for a long time, I can assure him that, although it is easy for politicians and others to get cheap laughs from attacking lawyers, in the main, lawyers who operate in this field are highly motivated towards their clients, often make lifelong friends of them and want to achieve the best for them.

If some cases look expensive and go to court, that is because the law was ill-defined and contained too many anomalies. The overwhelming majority of cases, in which matters are relatively straightfoward, are settled by the parties long before a court hearing. I hope that my hon. Friend will take this opportunity of withdrawing his rather intemperate comments. I fully share his hope that few cases will go to court if the Bill is adequately drafted.

Mr. Churchill

I am obliged to my hon. Friend for allowing me the opportunity, not to withdraw my previous remarks, but to make it clear that it was certainly not my intention that they should be taken to apply to the legal profession in general. I was expressing my anger about the fact that, in the context of the way in which it was intended that compensation should operate under the Bill, half of the £20 million to be set aside by the Government was to be swallowed up in legal fees. I believed that that was not the wish of the House, so I am delighted that my hon. Friend the Minister took the matter away and returned to tell the Committee that he had halved the prospective legal bill. If my remarks were somewhat intemperate, at least they had a worthwhile result.

Mr. Batiste

I am pleased that my hon. Friend has put his comments in context. The substantial legal costs that are often incurred in civil injury claims arise from the fact that many insurance companies make realistic offers later rather than earlier; so the Government will easily be able to slash their legal bill dramatically if they make realistic offers and settlements sooner, rather than waiting until they are on the doorstep of the court — something that happens all too often nowadays.

I wish to refer briefly to three matters on which I should like assurances in the hope that we can remove possible areas of ambiguity so that when claims arise there will be clear guidance from the Minister on the attitude that the Government will take. On Second Reading and subsequently, there were commitments from the Minister that the Crown will stand behind all service personnel who are sued in claims for negligence. We must consider carefully the scope of that, and I hope that we shall have an assurance that the Crown will stand by personnel, even if they are acting outside the scope of their orders and not operating within the authority delegated to them by the Crown. I should also like some guidance on what would happen in the increasingly frequent undertaking of joint exercises with other military forces, where the negligence that results in injury to the service man may, at least in part, be caused by service men of forces other than those of Britain.

The second area in which I seek clarification is the commitment made on Second Reading that the right to sue for negligence and to obtain damages would be in addition to the no-fault payments that are made already in the services. Am I right in understanding that there will be a global sum that will be the higher of the two and that the lower will be offset against it'? Some clarification is needed on that score.

The third area is that of evidence. The preparation of any claim for negligence depends greatly upon the disclosure of evidence by the party in whose hands that evidence rests. It is clear that it will be the Crown that will hold the evidence in the majority of cases, and I am not clear how the production of such evidence will interact with, for example, official secrets legislation and the attitude of the Crown in saying that certain evidence and documents will not be disclosed because they involve the national interest. The "national interest" is a broad term that can be extended to include almost anything. There will clearly be much litigation if documents are not produced that are necessary to establish in reality the evidence of negligence or otherwise.

We must consider also the vexed question of retrospection. When we remedy a grievance from a certain date, the contrast between those who benefit from the new legislation and those who have suffered but cannot benefit from it will become increasingly severe and increasingly more pointed as the years pass. I understand the thought processes that mean that there is no provision for retrospection built into the Bill, but there is nothing to prevent the Government from dealing with cases in the past on an ex gratia basis once the new principle of law has been established. I hope that the Government will address themselves to doing precisely that.

I conclude by commending my hon. Friend the Member for Davyhulme on introducing the Bill. I hope that it will have a speedy passage through its remaining stages in Parliament.

12.18 pm
Mr. John Powley (Norwich, South)

I hope that the House will forgive me if I repeat a statement which has been made by every hon. Member who has spoken in the debate; it would be remiss of me if I were not to do so. I congratulate my hon. Friend the Member for Davyhulme (Mr. Churchill) on the expeditious way in which he has conducted the Bill through the House. I hope that it will pass through the other Chamber with equal speed and success.

The House will be aware that I welcomed the Bill on Second Reading. I recognised that it was a piece of legislation that was required urgently to put right a deficiency within the armed forces. I welcomed it also in a personal sense because my youngest son is a regular member of the armed forces. His engagement in the Royal Air Force is in the safety equipment section, which deals with items such as parachutes, life rafts and other pieces of safety equipment that the armed forces operate so efficiently. Since my son's engagement, I have become more conscious of the possibility, remote though it may be, of an accident taking place, sometimes not by negligence but by pure chance. Negligence can occur that is not deliberate, and I have become more conscious of that because of my son's involvement in a safety equipment section. It has heightened my awareness of Parliament's responsibility to ensure that those who suffer because of some form of negligence, whether deliberate—I am sure it would not be deliberate — or accidental, should be properly compensated. That is why I welcomed the Second Reading and my membership of the Standing Committee.

I was torn in half over the matter of retrospection. I sincerely say to the right hon. Member for Stoke-on-Trent, South (Mr. Ashley) that I wanted to support the views that he put forward in Standing Committee, but it was with a heavy heart that, having thought deeply and seriously about the issues, I could not support him, and I apologise for that. I hope that he will understand the concern that one must also have for the implications of such a measure.

I was extremely relieved to hear that the Minister, and, I am sure, his successors, whoever they may be, will review old cases with characteristic sympathy.

I remind the House that my constituency of Norwich, South is in the heart of East Anglia. That area has strong and long associations with the armed forces. East Anglia still has many American and British air force bases. We also have strong Army attachments. Many of my constituents and others in Norfolk and other counties of East Anglia have served the armed forces with distinction. They have suffered the trials and tribulations of a world war and have suffered because of past negligence. I do not know of any particular cases with which my constituents consider that I could help, but when the Bill is on the statute book I shall gladly help. The Ministry of Defence is sympathetic to my constituents' problems.

I raised on Second Reading the matter of legal costs. I am encouraged to know that expenditure on legal costs will be examined carefully. I hope that the money that is saved by doing so will be used to enhance the compensation that is paid to those who have suffered damage and grievance during past service under the Crown. With great respect to the legal profession — I hold it in high esteem—I would prefer that money to go to proper compensation to alleviate the problems that have occurred in the past, rather than to go to the legal profession. I am sure that there is plenty of other litigation with which members of the legal profession can occupy their minds.

It has been a pleasure to have served the Committee and to have made a modest contribution to the Bill. It has been a pleasure to play a part in what will be a sensible, worthwhile, and welcome Act of Parliament.

12.24 pm
Mr. John Ryman (Blyth Valley)

I support the Bill and warmly join in the congratulations that have been proffered. I have a particular interest in the Bill, as a recent constituency case suffered from this specific problem.

I should like to make two points for consideration by the Minister. As a lawyer, I disclose an interest in this matter and know the cumbersome and lengthy procedure that inevitably takes place in civil litigation for personal injuries. This Bill seeks to simplify the procedures and I hope that it will soon be passed into law.

Will there be provision for any interim payments pending the completion of litigation? Experience has shown that insurance companies play cat and mouse with plaintiffs. As one hon. Member said, insurance companies make inadequate offers in the first place, and from the date of the issue of the writ, through the lengthy proceedings of pleadings and interlocutory processes, discovery, interrogatories and so on, until the case is listed in the courts, one, two or even three years may elapse.

In view of the gravity of the cases that will be brought under this scheme, do the Government have in mind interim payments to the injured service man pending the hearing of the full case? I do not trust insurance companies. Whatever sum is set aside, and however it is divided between the legal costs and the sum available for the payment of damages to the injured service man, the insurance companies will look at it purely as a commercial proposition and will only make available sufficient money on a payment into court basis pending the hearing of the full case.

Payments into court are influenced by considerations of legal costs and not by sympathy for the plaintiff. Do the Government envisage an interim payment scheme for the service man, so that pending the issue of the writ and the ultimate adjudication by the tribunal he will have a substantial sum available?

Perhaps my second point should be linked with civil litigation and personal injury cases generally. Many years ago a Royal Commission headed by an eminent Law Lord recommended no-fault insurance compensation. That has been debated in the House and in the House of Lords on many occasions. There is all-party agreement that it should be brought in, thereby in effect abolishing much of this litigation by making it unnecessary. Does the Minister envisage that this type of litigation enabling a cause of action to be brought by a service man will come within the framework of machinery where no-fault compensation can be considered?

Where a service man has been injured in the circumstances outlined by the hon. Member for Davyhulme (Mr. Churchill) and an acceptance of liability is made by the Ministry of Defence, why is there a need to go through the whole machinery of litigation and the cat and mouse game played by the insurance companies? These two points, interim payments and no-fault compensation, are worth considering.

12.28 pm
Sir Ian Percival (Southport)

I am glad to have the opportunity to say a brief word in congratulating and thanking all concerned. I congratulate and thank my hon. Friend the Member for Davyhulme (Mr. Churchill) for promoting that Bill, and the Government for the attitude that they have adopted towards it. I congratulate the House on being, it would seem, about to do something useful, albeit within a limited sphere.

I was just in time to hear two comments about legal matters. In connection with legal expenses, my hon. Friend the Minister of State for the Armed Forces will bear out that it was the lawyers who first expressed alarm at the proportion of money that it was said would go on legal expenses. We have no desire whatever to see an undue proportion go in that way. Our desire is the same as that of every other Member of the House, to see that those who are covered by the Bill get adequate and good compensation.

On the point made by the hon. Member for Blyth Valley (Mr. Ryman), I should have thought that most of the cases would be for personal injuries and would be covered by order 29 of the rules of the Supreme Court, which allows the making of interim payments. My purpose is simply to echo what so many others have said. I am glad to add yet another voice, as I believe that this is such a good little measure. It will fill a gap about which many of us have felt very strongly. I congratulate everyone concerned — the promoter, the Government and the House.

12.30 pm
Mr. Kevin McNamara (Kingston upon Hull, North)

The lawyers seem to he making confessions about their interests. Let me make a confession as someone who once taught law. When I was teaching tort, there was always a little subsection in the problem in which I included one party as a serving soldier to see if the students remembered another lecture that I had given on the immunity of the Crown. My notes — if they still exist — will have to be amended. However, I trust that if we have a Labour Government they will never have to be used.

I welcome the Bill introduced by the hon. Member for Davyhulme (Mr. Churchill) with two and a half cheers, not with three, for reasons that I shall give shortly. As a House, we should join my right hon. Friend for Stoke-on-Trent, South (Mr. Ashley) in congratulating the Section Ten Abolition Group on its tremendous work in raising the issue. The group must have mixed feelings about seeing the issue coming to fruition. Its members felt the necessity to remedy the anomaly based on their own unhappy experiences. However, in remedying the issue for the future, the Bill does not go any way to meet the sufferings endured by their friends or relatives, which led to the campaign.

With regard to nuclear veterans, we have had an undertaking that the results of the survey will be announced by the end of the year. However, it is, after all, only a statistical survey. Some of us are still at a loss to understand why there must be a statistical survey, as that will take a long time to monitor and to reach conclusions about. We are not considering individual sufferers or complainants; we are merely considering a statistical exercise.

I have given the Bill only two and a half cheers because of its lack of retrospection. There is undoubtedly a difficulty with a Bill that might impose a liability on a past or current service man for something which he thought had gone from his life, an action which he may have regretted and which he felt had been dealt with, but a retrospective benefit would be provided for those service men who had suffered.

I hope that two things will arise. First, we have heard the example of the pneumoconiosis fund and the way in which it has worked retrospectively. I hope that for those who have suffered as a result of being present at the atomic weapons tests a similar fund will be established to meet their particular problems. In Committee the Minister gave an undertaking that the Ministry would be reviewing old cases. It would be helpful to the House if we knew how many cases are involved and what length of time the Ministry considers will be necessary for this purpose. There is still much unhappiness, shared by the nation as a whole — another example is the pensions given to widows of former service men — about the glaring anomalies and stark unfairness between what went before and the position after the House has remedied the grievance.

The House owes a debt to the hon. Member for Davyhulme for introducing the Bill. Although one would have liked the Ministry to have introduced it, the hon. Gentleman dealt with it skilfully, and his relations with hon. Members on both sides of the House, especially my right hon. Friend the Member for Stoke-on-Trent, South, were exemplary, He gave great consideration to representations made by outside interest groups and deserves, and must have, the congratulations of the House. I hope that when the Minister replies to the debate he will hold out some hope to former members of the armed forces who have been invalided out and who have suffered as a result of negligence, and will go some way to meet the points made by hon. Members on both sides of the House with regard to re-examining old cases and the possibility of providing improved compensation.

12.36 pm
The Parliamentary Under-Secretary of State for the Armed Forces (Mr. Roger Freeman)

On behalf of the Government, I welcome the Bill introduced by my hon. Friend the Member for Davyhulme (Mr. Churchill) and strongly support its speedy passage through the House. I hope that it will have similar all-party support and a speedy passage through the other place.

The purpose of the Bill has been spelled out clearly. It gives a right to service men and women — a right that has been denied them for the past 40 years — to sue other service men and women and to show the courts that there has been negligence. In response to my hon. Friend the Member for Elmet (Mr. Batiste), I confirm that the Crown will stand behind those service men and women who are sued where their actions were carried out in the course of their service duties.

I am pleased that the Bill has received all-party support. Although I have only limited experience of parliamentary proceedings, I believe that this shows Parliament at its best. I pay tribute to the sustained campaign of lobby groups, such as the Section Ten Abolition Group, and Members of this House and of the other place, led by my hon. Friend the Member for Davyhulme. It is also important to pay tribute to my right hon. Friend the Secretary of State and my ministerial colleagues. They should not be portrayed as having been brought kicking and screaming to the Dispatch Box to support the Bill. The right hon. Member for Stoke-on-Trent, South (Mr. Ashley) did not portray them in that way, but for the record I emphasise that the Ministry of Defence has been in no way obstructive. Ministry officials carried out a detailed study of the pros and cons and the implications of repeal of or amendments to the Crown Proceedings Act 1947, and only after that analysis had been made could Ministers consider the issue and reach a decision. As shown by the introduction of the ex-gratia payments scheme from 8 December last year, Ministers have contributed to progress in this area, and my hon. Friend the Member for Davyhulme and the supporters named on the front of the Bill have played their part in facilitating its speedy passage.

Mr. Ashley

I am anxious to avoid a clash, but I must set the record straight. On occasions such as this, we tend to use soothing syrup and to obfuscate the issues. The fact is that the Government and the Ministry of Defence have consistently refused to give way on this subject. Pressure was applied time and again and is recorded in parliamentary answers and in letters to me in which the Ministry has repeatedly said, "No. We cannot give these rights to service men and women." There is absolutely no doubt about that. I do not want to bicker, but that is how the record stands. Even with the efforts of its sponsors, the Bill would never have seen the light of day without a sustained campaign by the men and women who have been disabled and who are now excluded from the Bill. That is quite wrong, and there is no justification for the Minister's statement.

Mr. Freeman

I think that I am agreeing with the right hon. Gentleman. I paid tribute to those who have drawn the attention of the House and successive Governments to the need for reform. I cannot speak for previous Administrations, but I think that the right hon. Gentleman will agree that this Government have acted. We have given strong support to the Bill and have played our part in introducing the ex gratia scheme from the date of the announcement made by my right hon. Friend the Secretary of State.

My hon. Friend the Member for Elmet asked a number of specific legal questions. He asked whether the Crown would stand behind defendants who were acting outside their orders or the normal scope of their duties. We will stand behind a service man or woman who is sued only if he or she was acting in the course of his or her normal duties. If that is not the case, it will certainly be open to the service man or woman who has been wronged to sue, but he or she must sue directly the service man or woman who he or she claims has acted in an unjust, incorrect or negligent manner. It is only fair for the employer — in this case the Ministry of Defence — to extend his financial guarantee in circumstances where the service man, NCO, or officer was acting in the normal course of his duty and in the lawful fulfilment of it.

My hon. Friend the Member for Elmet asked about joint exercises with a foreign army. He asked what would happen if a service man in a foreign army—perhaps one of our NATO allies — was involved in an accident during a joint exercise. I assure my hon. Friend that we already have adequate arrangements for handling such cases under the international status of forces agreements with which he will be familiar. Those arrangements will continue after the Bill is enacted. I assure my hon. Friend that, in the few instances where I have been involved in dealing with the Governments of our NATO allies, I have always found those Governments co-operative and anxious to resolve the legal issues arising from a claim as speedily as possible. I am sure that that will continue to be the case.

Mr. Powley

Not being a legal person, I am ignorant of the measures referred to relating to exercises with the armed forces of another country. Will the Minister explain? If a German service man involved in a joint NATO exercise with the British Army was negligent and so caused injury to a British service man, would that British service man be entitled to sue the German soldier or army, and would the German army be responsible for the compensation?

Mr. Freeman

The service man would take the matter up through the Ministry of Defence and we would take it up with the armed forces of the country concerned through the status of forces agreement. It would clearly be invidious if in a joint exercise a British service man had the right to sue a British NCO without having the same financial remedy in relation to the armed forces of other countries. Certainly, therefore, we will make the correct representations on behalf of the British service man concerned. I hope that that reassures my hon. Friend.

My hon. Friend the Member for Elmet was concerned about whether evidence would be withheld for reasons of national security, and about the problems which could arise in the submission of evidence to the courts. This should not cause any difficulties in civil litigation. If considerations of national security arise in relation to evidence, arrangements might be devised to ensure that, where appropriate, liability is admitted by the Crown and discussions are allowed to continue on the quantum of damages. If my hon. Friend is not satisfied with that reply, perhaps he will put down a question or write to me, when I shall be delighted to deal with his concerns in greater detail.

The hon. Member for Blyth Valley (Mr. Ryman) raised two interesting points about interim payments and about the no-fault system. We have every intention of operating an interim payment system where circumstances warrant it, which would clearly include cases in which liability is admitted but where there might be some further discussion. I suspect that the hon. Gentleman is thinking of settlement out of court, where there might inevitably be delay in settling the final amount.

I confirm that the Ministry will use the interim payment system, where appropriate, in a positive and constructive way and not in an obstructive way. Commanding officers in the British armed forces have been operating the system since 8 December last. When potential cases arise in which service men or women claim that acts of negligence have been done to them by others in the services, commanding officers know that they must advice wronged service men or women of their legal rights and advise them to obtain proper advice, not from the Ministry of Defence, the Army legal service or the corresponding services in the other two arms, but from civilian lawyers.

If the circumstances so warrant, a soldier will be entitled to receive the same help as any other citizen from the legal aid system. I repeat the commitment that I gave in Committee to my hon. Friend the Member for Davyhulme that the Ministry of Defence will not seek to obstruct the progress of cases by ranging a great battery of lawyers against perhaps just one plaintiff. We shall also seek to reach settlements promptly and, if possible, out of court. That is clearly in the best interests of all concerned.

The hon. Member for Blyth Valley also raised the subject of the no-fault system. In a sense, we have had such a system for a considerable number of years. The hon. Gentleman may not be familiar with the details, but under the present system, which the Bill seeks in a sense to modify, whosoever fault an accident is, there is a no-fault payment by the Ministry of Defence and the DHSS. They are both lump sums and annual payments, they are largely tax-free and the annual payments are largely indexed to the retail price index. I believe that this was the point of concern in relation to Sergeant-Major Yeoman, but I shall return to that in a moment.

We already have a no-fault system. Criticism has been made, especially by the right hon. Member for Stoke-on-Trent, South on the adequacy of those no-fault payments. My hon. Friend's Bill would give service men the additional right to receive an automatic payment from the Ministry of Defence and the Department of Health and Social Services and, in addition, the right to sue in the courts.

My hon. Friend the Member for Elmet asked whether there was true additionality. On Second Reading, I confirmed that the amount of court damages awarded, or the amount of the settlement reached out of court, would be in addition to the no-fault payments, subject in certain cases to an abatement by the Ministry of Defence and the Department of Health and Social Security, of the recurring annual amounts. That is in accord with practice in the private sector. However, the damages that the service men would seek in court, or seek to reach in an out-of-court settlement, would be additional. That is the value of the additional right that has been given to service men. They can go to court and say, "In addition to those automatic payments, I want a further sum to right the wrong that has been done to me in terms of the loss of my future employment prospects, and the damage done to my enjoyment of life."

Mr. Ryman

rose—

Mr. Freeman

I shall give way to the hon. Gentleman in a moment, if I can finish my sentence.

In 1947, when that legislation was introduced, the then Administration thought that the automatic no-fault payment system was broadly equivalent, in financial terms, to the amounts that the courts would have awarded in the absence of those payments. As my hon. Friend the Member for Norwich, South (Mr. Powley) has correctly pointed out, during the past 40 years, court-awarded damages have risen substantially so that service men and, indeed, those in the private sector, if they go to court in cases such as those covered by my hon. Friend's Bill, will receive sums in addition to those that they would have received under the no-fault system.

Mr. Ryman

I am grateful to the Minister for dealing with my two specific points on interim payments and no fault compensation. Will he confirm that service men who avail themselves of the right that will be conferred by this legislation will be entitled to interest on their claims from the date of the cause of action?

Mr. Freeman

I assume that that matter would normally be for the court to decide. Perhaps the hon. Gentleman will permit me to reflect on that question, and to write to him with a more considered judgment.

The object of my hon. Friend's Bill is to give a service man the same right that he or any other citizen has in relation to his employer or to the other employees of that employer and to sue for acts of negligence. The same principles will apply to service men in settling damages, and to the Ministry of Defence in determining the amount of damages offered out of court in a private settlement, as would apply in the private sector.

Mr. Batiste

I seek only a moment's clarification on the question of additionality. So far as I am aware, if one goes to court with a civil claim, one makes a claim for compensation for an amount that one can prove, with evidence, that one has lost. One must set against that the receipts that one has received by way of litigation. It is important on this novel principle to know how the no-fault payment would interrelate with that calculation by the court. At first sight, it seems that the court, in assessing civil compensation, would say that there had been a payment by way of mitigation by the no-fault payment. It is important that that interface is clearly defined, so that the Government's intention of giving genuine additionality is carried through.

Mr. Freeman

I entirely accept the spirit of my hon. Friend's intervention. I should like to point out to him that my hon. Friend's Bill seeks to put service men on exactly the same footing as civil servants. A civil servant already has the ability to sue the Ministry of Defence. Someone who is not in uniform can sue us. That person could sue the Ministry of Defence, which is not covered by the crown Proceedings Act 1947, and others in the employ of the Ministry of Defence. The same principles that apply to a civil servant will also apply to a service man. The abatement that might apply to the annual payments made by the MOD and the DHSS — both Departments are involved — will not put service men in a different position from anyone else who has the right to sue the MOD or any other Department.

The right hon. Member for Stoke-on-Trent, South, my hon. Friend the Member for Surrey, South-West (Mrs. Bottomley), my hon. and learned Friend the Member for Colchester, North (Sir A. Buck) and my hon. Friend the Member for Norwich, South referred to the central issue of retrospection and the creation of a special fund. All hon. Members will concede that our debates on the Bill have had the value of clarifying the difference between conferring a benefit and conferring a right. The Bill confers a right and consequentially a financial benefit. Many hon. Members have talked about the need to create a system of additional benefits and I shall return to that.

Service men are being put in the same position as any other civilian, and may sue another service man. The Crown will stand behind the service man being sued so long as he acted lawfully in accordance with orders in the course of his duties. That right cannot be retrospective, for the reasons which my hon. Friend gave. He is absolutely correct. We cannot retrospectively confer a right and therefore place a liability on the shoulders of somebody else, irrespective of whether the Crown stands behind the service man sued retrospectively. That is a basic principle of our rule of law and I accept that argument.

Mr. Ashley

indicated dissent.

Mr. Freeman

The right hon. Gentleman shakes his head. He fails to draw the distinction between conferring a financial benefit, through whatever mechanism he cares to suggest, paid by the MOD directly to those who have suffered and——

Mr. Ashley

Does the Minister accept that there are hundreds of cases of retrospective legislation dating from the 16th century conferring retrospective benefits and retrospective rights on people? We are seeking to give retrospective rights to people who will benefit from them. The Minister has already stated clearly that the MOD will pay the costs incurred by the person responsible for negligence, so the whole purpose of retrospection is to benefit the disabled person. The payment will be made by the Ministry, so no burden will be placed on the individual who was responsible for the negligence. There are hundreds of precedents over the past 400 years to that effect. What is wrong with that?

Mr. Freeman

With respect, I must disagree with the right hon. Gentleman. I admit I am not a lawyer, but I cannot think of legislation that has come before the House, certainly during this Parliament, which confers a retrospective right on individuals to sue third parties. In Committee, the right hon. Gentleman and other hon. Members cited the Local Government Finance Bill as a parallel case of the Government seeking retrospective rights. I argued that it was not, and clearly the right hon. Gentleman agrees with me.

Before I come to the separate issue of creating retrospective benefit, I must stress that the Bill confers a right to sue third parties which cannot be made retrospective. The procedure and mechanics are quite clear. One seeks legal advice and goes to court. As the employer, we have said that we will stand behind those who are sued when they have been acting in the normal course of their lawful duties. I invite the right hon. Member for Stoke-on-Trent, South to give me an example of legislation which retrospectively gives the individual the right to sue others. I cannot think of such an example.

Mr. Ashley

I apologise for intervening again, but as I have been invited by the Minister, my response is this. I have researched this carefully and, historically, there is no direct retrospective legislation which confers the right to sue. I concede that point. However, there is retrospective legislation which provides benefits for individuals. The Minister should use that precedent to provide those rights for service men who have been disabled. That is my simple proposition.

Mr. Freeman

Finally, I think that we are in agreement. The right hon. Member for Stoke-on-Trent, South has conceded that he cannot cite an example which retrospectively grants a right to individuals to sue third parties. However, the right hon. Gentleman has raised a perfectly valid point—I am attempting to deal with that substantive point, which was also made by several right hon. and hon. Members—that some mechanism should be found to make direct payments from the public purse to those who have suffered. I think that I am encapsulating the right hon. Gentleman's point clearly enough.

It is important to recognise that, whatever the criticisms of the present scheme, we have an existing compensation scheme which, as I explained earlier, is automatic and no-fault. In Committee I gave certain commitments, and I repeat the key commitment that I gave—that we will continually review and ensure that the armed forces pension scheme, and the other schemes that the Ministry of Defence operates which involve payments to those who are invalided out of service or who die in service, are adequate in comparison with other public departments and the private sector. That is a most important point. I t is a separate point from the subject of the Bill, as the House has agreed. It is a high priority to ensure that the terms and conditions of those schemes are reviewed and uprated where appropriate.

I shall now deal with the specific suggestion of the creation of a fund similar to the pneumoconiosis fund. As I said in Committee, I do not think that one can cite that fund as a parallel case or justification for the kind of special fund or source of funds that my hon. Friend the Member for Davyhulme has cited. That is because pneumoconiosis is akin to an industrial disease, which, sadly, has affected many coal miners. It is no way similar to the aggregation of cases that would be brought after section 10 is abolished, which are individual cases where: wrongs have been done. Each one would be different. Compensation for the effects of an industrial disease is wholly different.

I appreciate the sentiments that my hon. Friend the Member for Davyhulme has in his heart in suggesting that fund, but the general commitment that I want to give him is that the right way to proceed is through modification and amendment to the existing system of benefits, which compensates those who are injured and those who sadly die and their dependants. He is quite right to call for a review of that system. I can give him an assurance that that is precisely what the Ministry of Defence will do.

The hon. Member for Kingston upon Hull, North (Mr. McNamara) asked about reviewing old cases. For the sake of clarity, I repeat what I said in Committee because there might be some confusion in his mind, for which I apologise if I created it. The benefits paid to those who suffered before 8 December 1986 are governed fairly specifically. There is very little leeway for varying the lump sum or annual payments paid by the Ministry of Defence and the DHSS. The amount paid is very often subject to medical judgment and not ministerial or political judgment. Where there is variation, it is because someone's medical condition has deteriorated since the event.

I did not want to give the hon. Gentleman the impression that I or any other Minister could review a case and change the amount of disability payments. He may have had in mind the redress of grievance procedure, about which I know he has tabled a number of questions in the past few weeks. I make it plain that the redress of grievance procedure and the criteria used within the Ministry of Defence for making payments to those who claim that they have suffered grievance at the hands of the armed forces have not changed and will not change as a result of the Bill. The procedure is a mechanism, under which several cases are still being reviewed, for sympathetically considering all the facts in particular cases. I did not want to give the hon. Gentleman in Committee or give him now any hope that the Bill provides a wholesale remedy to the cases that he and other right hon. and hon. Members have cited.

Mr. McNamara

I do not wish to prolong the matter, but we also spoke about people who may be injured as a result of nuclear tests.

Mr. Freeman

I give the hon. Gentleman an assurance that I will deal with that after dealing with ex-Sergeant-Major Yeoman's case. In common with all hon. Members, I pay tribute to his bravery in saving the life of another member of the Parachute Regiment and putting himself not only then but for the rest of his natural life in pain and injury. As my hon. Friend the Member for Davyhulme said, it was an example of the professionalism of the British armed forces that we have come to expect but perhaps take too much for granted, although we admire it.

If I have written down correctly what my hon. Friend said, it was that proper compensation is not yet available. I assume he meant additional compensation over and above amounts that ex-Sergeant-Major Yeoman has received and is receiving. It is not a case of ex-Sergeant-Major Yeoman receiving nothing from the Ministry of Defence. I think he was referring to additional damages or compensation sought by someone who would not fall into the category of those who might benefit from the Bill.

Mr. Churchill

I am obliged to my hon. Friend. My words were "full and comparable compensation", by which I meant comparable to what we are providing for in the context of this Bill.

Mr. Freeman

I am grateful to my hon. Friend. He is absolutely right to refer to the fact that the armed forces pension scheme and the DHSS scheme makes payments irrespective of whose fault a particular accident was, or of the self-sacrifice or bravery of any individual in harming himself to save others. Mr. Yeoman has been in contact with the Ministry of Defence, not with me personally, and I give my hon. Friend a commitment that following this debate I will look at that case and review it most carefully.

I understand that Mr. Yeoman has been advised that the financial value of the benefits that he has and is likely to receive under the present scheme is roughly equivalent to the amount of court-awarded damages that might be payable to him if those injuries had been caused in a negligent fashion.

That is my immediate advice, but I will certainly examine Mr. Yeoman's case with great care and will write to my hon. Friend the Member for Davyhulme. Since this Bill will not deal with that specific case, my hon. Friend has suggested an insurance policy so that the Ministry of Defence, as the employer, might somehow insure against these particular sad and unfortunate examples of injury. In that way we might provide some additional sums. I shall certainly consider that suggestion.

I wish to deal briefly with the point raised by my right hon. and learned Friend the Member for Southport (Sir I. Percival) concerning the financial and public service manpower effects of the Bill. I respectfully remind the House that, on the front page of the Bill before us, the paragraph "Financial and public service manpower effects of the Bill" has been amended. The House should be aware that, in Committee, my hon. Friend the Member for Davyhulme sought to insert a fresh draft to reduce the estimate of costs after 10 years of the operation of the scheme from approximately £20 million to £13 million. My hon. Friend did this after he had raised proper questions about the level of the legal costs of Ministry of Defence advisers and the cost of reimbursement to successful litigants. The sum of £13 million, as the so-called steady state cost of his reform, is still an estimate. Although we have had four months experience of the operation of the ex gratia scheme, it is far too early to suggest the likely level of the results of that scheme. I believe that these estimates are, in a preliminary sense, on the high side. Nevertheless, it is far too early to forecast with any accuracy the number of claims and the level of settlements. However, I hope that the amendment is helpful.

In conclusion, I wish to turn to the question put by the hon. Member for Kingston upon Hull, North, on nuclear tests. The hon. Gentleman asked specifically why there had been a delay in the expected receipt of the report from the National Radiological Protection Board. I confirm again, as I have done two or three times, that the report will he received before the end of this calendar year. I shall explain why there has been a delay, to allay any anxiety on the hon. Gentleman's part. I am aware that the hon. Gentleman and the House wish to return to this matter in some detail at the appropriate time.

The report has been delayed because the board has been comparing the incidence of cancer and mortality among those service men or participants in the tests against a controlled group of the civilian population of the approximate age and sex distribution, but who were not present at the tests. I am sure that the House will readily appreciate that it is sometimes difficult to track down the medical records of the last few members of the sample. The board has said that it is having difficulties in obtaining medical records. The hon. Gentleman will be aware that the cancer registration system is, I understand, a comparatively recent reform in our national health affairs.

It is proving a little difficult to complete the sample to an acceptable level. However, Ministers have made it plain to the board that we expect it to redouble its efforts so that the report can be completed and the Government and the House can consider the results. It is much better to obtain the facts before considering the appropriateness of any remedy.

For the sake of clarity, I confirm again that neither protected nor unprotected men were exposed to the hazardous effects of nuclear explosions during the United Kingdom's nuclear weapon test programme. That would have been in complete contravention of the safety policy and philosophy for all our nuclear weapons tests. That is a statement which my predecessors made. I repeat it and suggest that perhaps the right time to return to the issue will be when we have the results of the independent survey.

I welcome the Bill and hope that it has a speedy passage. I have visited units of the British armed forces in this country and abroad since the announcement and I know that the Bill has been greeted with wide acclamation by all ranks. It has had, and will have, no material effect on training standards or the adequacy of training. The Bill is widely welcomed by those who believe that professional soldiers, sailors and airmen should have the same rights as their civilian colleagues who work for the Ministry of Defence. I hope that the Bill receives a speedy passage in the other place.

Question put and agreed to

Bill accordingly read the Third time, and passed.