§ Order ,for Second Reading read.9.35 am
§ Mr. Churchill (Davyhulme)
I beg to move, That the Bill be now read a Second time.
Of all the duties that Parliament has taken upon itself, few are more ancient in origin or more fundamental to the purpose of our being in this place than the redress of grievances. Predating by far the power to make or break Governments, redressing the grievances of the ordinary citizen against the overmighty power of the Crown or the Government has been seen by parliamentarians down the centuries to he one of the highest duties of our two Houses of Parliament. I am glad to say that to this day that remains the case, although I regret that it should still be necessary.
The Bill seeks to rectify an injustice that has become increasingly more glaring—the discrimination between members of the armed forces and the ordinary citizen in seeking damages in cases of injury or death arising from the negligence of others. An ordinary citizen or his dependants may sue through the courts and obtain substantial damages, but members of the armed forces are denied that right. This discrimination has given rise to much bitterness and a sense of injustice among those who have served their country loyally and suffered for it, not once, but twice—first, in suffering injury or death in the course of their duty and, secondly, in being denied the proper level of compensation that would he their due if they were in any other walk of life. I count myself fortunate that the opportunity has fallen to me to rectify this injustice.
I should especially like to thank my fellow sponsors of my Bill, who are drawn from all parties, as well as those who have campaigned outside the House to secure a change in the law. I pay special tribute to the right hon. Member for Stoke-on-Trent, South (Mr. Ashley), who has been a leading light, in recent years, in the campaign to have the law changed. I welcome the fact that he is a sponsor of my Bill.
The concept of Crown immunity dates back to at least the 13th century and was based on the maxim that "the King can do no wrong." In practice, that meant that the King could not be sued in his own courts. That remained the situation until 1947, when the first post-war Labour Government brought in the Crown Proceedings Act as a reforming measure aimed at removing much of the Crown 568 privilege and granting the citizen, for the first time, the right to sue the Crown. However, the Government of the day were adamant that that right could not be extended to members of the armed forces by reason of the special and hazardous nature of their employment. Indeed, they went further. They removed the right, which had previously existed, of one member of the armed forces to sue another in cases of injury or death caused by negligence. It has to be said that this was a right that was rarely used in practice and was discouraged by the fact that the Crown was not legally obligated to stand behind any officer or soldier who might have been sued.
The then Attorney-General, Sir Hartley Shawcross—now the noble Lord, Lord Shawcross — on Second Reading of the Crown Proceedings Bill in July 1947, stated:It is necessary in the course of Service training. in order to secure the efficiency of the Forces, to exercise them in the use of live ammunition, in flying in close formation and, in the Navy, in battle conditions with, perhaps, destroyers dashing about with lights out, and so on. These operations are highly dangerous and, if done by private citizens, would, no doubt, be extremely blameworthy".
Parliament at the time accepted that it would not be appropriate for service personnel, even in peacetime, when it is often essential to push training to the limits of realism, with risks comparable to those encountered in actual operations, to be able to bring civil actions for negligence against one another. It was considered in the atmosphere of 40 years ago that to do so would run against the fundamental requirement of mutual trust, confidence and loyalty which is essential to an effective fighting force.
However, 40 years have since past; years in which, apart from Korea and brush-fire wars in various part of the globe, we have been at peace. The general climate of public opinion in civil and human rights has changed considerably since that legislation was enacted. Throughout society there is now much less willingness to accept that the special circumstances of life in the armed forces justify depriving the service man or service woman of the rights enjoyed by his or her fellow citizens, particularly in peacetime, and particularly in circumstances that are similar to those experienced by other disciplined forces that are engaged on hazardous duties, such as the police and the fire brigades. This change of opinion is undeniably in the right direction and we in Parliament must respond to it.
Section 10 is outdated and places at a distinct disadvantage a section of society in peacetime in a way that does not apply to those who do not have the honour to wear the service man's uniform. Because of section 10, a service man who is injured in peacetime as a result of negligence on the part of one of his colleagues is denied the right to pursue a claim for damages in court. Instead, he is paid, regardless of faults, his pension and disability benefit if he is forced to quit the armed forces. These payments are normally tax free and are operated as necessary to take account of inflation. However, let us not forget that the existing legislation was enacted many years ago and in rather different circumstances. What may have been valid in the deliberations of 1947 is certainly not so today.
On Second Reading of the Crown Proceedings Act in 1947 the then Attorney-General acknowledged that if a service man who was injured on duty remained in the service he would get proper medical care and treatment.
569 On the other hand, if he was invalided out of the service or died he or his dependants would have pension rights. The Attorney-General went on to say:the capital value of the pension rights, in terms of money is, in general—I am not saying it is so in every case, because one cannot be certain in every case what damages will be awarded—as valuable as the probable damages which may be recoverable in an action at law if such an action lay."—[Official Report, 4 July 1947; Vol. 439, c. 1681–83.]
It is evident that it was not the intention of the Labour Government or of Parliament to place the service man at a disadvantage compared with his civilian counterpart, but rather to provide what might today be called a "no fault" system of compensation that effectively cut out the lawyers and the courts, and with them much expense and delay. Regrettably, that is not how things have worked out.
§ Sir John Page (Harrow, West)
As so often happens in the House, when one listens to the arguments one starts disagreeing with what one thought one might believe in. If the captain of a destroyer dashing about at night in assumed wartime conditions, as my hon. Friend set out earlier, bashes his ship into another, with the loss of many lives, and negligence could be proved, would the captain not be in the same position as, say, a lorry driver?
§ Mr. Churchill
Yes, I understand that to be the case, although I am not learned in the law. If that were to happen, provided that negligence could be shown though undoubtedly the courts would take account of the fact that military formations take part in especially hazardous operations, even when exercising in peacetime, and allowance would be made for that. Under the terms of the Bill, if enacted, those who were injured or killed in consequence of that act of negligence would be able to sue the individual or individuals responsible. However, those responsible would enjoy the full indemnity of the Crown, which would stand behind them financially. Even today, without that, they would be subject to the full rigours of military discipline for any acts of negligence that they may have committed.
The situation has changed dramatically over the past 40 years, above all with the fact that the awards made by the courts to civilians who are the victims of negligence have far outstripped, sometimes by a factor of 10 or more, compensation available to the service man. By way of example I cite a case drawn to my attention by my hon. Friend the Member for Tiverton (Mr. Maxwell-Hyslop), who cannot be here today as he has to attend a constituency appointment in the west country. He writes:For many years I fought—and without any eventual success — to receive adequate compensation for a young man who had a brilliant career as an amateur boxer. Unfortunately, through gross incompetence, he was terribly burned in an entirely avoidable accident while under instruction inside the fire tunnel at RNAS Culdrose. Whereas he had every right to expect a successful career as a boxer after his engagement in the Royal Navy, the injuries which he received had the consequence that he was refused a licence by the British Boxing Board of Control. Instead of a well-paid career, he has instead part-time work as a labourer.
Had that young man been a civilian, the courts would undoubtedly have taken full account of his blighted career as a boxer and the remuneration that would have gone with that career. As it was, because he wore the Queen's uniform and is judged still to be fit to do a part-time 570 labouring job, he qualifies for only a 20 per cent. pension from the Ministry of Defence. This is the sort of injustice that my Bill seeks to correct.
Nor am I the first to attempt this reform. As long as 15 years ago the injustice of this Act had become apparent, and in 1975 the former Member for Upminster, Mr. John Loveridge, fought unsuccessfully to bring in a similar Bill. Since then more and more cases of injustice have come to light. I propose to cite only one, though I feel that to do so may be invidious because there are so many cases that deserve mention and to which no doubt other hon. Members will allude.
It is a recent case, which involved 19-year-old Vincent Anderson, a sapper in the Royal Engineers. He died on 15 July last year of heatstroke, after being made to run in a deepsea diving suit on a hot day. The pathologist said that the diving suit prevented the body's normal cooling process from working and should never have been used for exercise outside water. Mr. Anderson's father, in a letter to me, alleges that not only has he been denied sight of the Army's report on this incident, but that the report was not made available to the coroner, who, no doubt, because of his incomplete possession of the facts, amazingly returned a verdict of accidental death.
It is my hope that that kind of shameful cover up, when death was plainly caused by negligence rather than by accident, will no longer be possible once the Bill is enacted. I also hope that those who are responsible for such training, which is rightly realistic and can be dangerous, will take their responsibilities even more seriously to ensure that no serious injury or harm is caused to trainees.
I have a son in the Royal Navy and when his mother heard that he would be put through the fire tunnel she said, "I will call up his commander. It is monstrous that my boy should be treated in that way." His mother was especially worried because she had heard that officers can be reprimanded for unrealistic training if a proportion of those involved do not sustain minor burns when going through those fire tests. However, I believe that it is fair to point out that it was precisely because of the realism of the training to which the armed forces are subjected—I cite particularly the case of the Royal Navy—that their loss of men during the Falklands campaign in the south Atlantic was far lower than it might have been. Though many ships were blown up and lost, in no case did more than 10 per cent. of the crew lose their lives.
That was directly attributable to the realism of their training in peacetime and I would not wish that training to change, but in cases such as the one I have cited it is clearly unforgivable for sombody to be put in a deepsea diving suit in the heat of a summer's day and be required to carry out vigorous exercises in suits not designed for that purpose. When this legislation is enacted it will be impossible for the Ministry of Defence to escape liability—as no doubt it will seek to do so in the case that I have cited, as it has in previous cases—by resorting to the infamous section 10 of the Crown Proceedings Act 1947.
For 15 years or more successive Labour and Conservative Governments have refused to countenance any change in the law. It is to the great credit of this Government, and especially my right hon. Friend the Secretary of State and my right hon. Friend the Minister of State for the Armed Forces, who have taken such a close personal interest in this Bill, that not only have the Government agreed to reconsider this matter, but, in the 571 face of the natural inertia of bureaucracy, have determined that section 10 should he repealed. The Government's decision is courageous, for it represents an implicit admission that the existing system is unjust. Such an admission strikes at the heart of the doctrine of bureaucratic infallability. It will be severely frowned upon by the "Sir Humphrey" brigade when they gather at the Athenaeum or such watering places as they may frequent.
My right hon. and hon. Friends deserve the gratitude of the House for having the fairness, good sense and courage to recognise that it is unacceptable, in peacetime, to deprive members of the armed forces—all of them volunteers—of one of their basic rights as citizens—
§ Mr. Barry Porter (Wirral, South)
In his discussions with the Government, did my hon. Friend consider the possibility of amending section 10? Although I support the Bill, it appears to place members of the armed forces in exactly the same position as the lorry driver previously mentioned. Surely there is a distinction and that that was the original reason for section 10. Would it not be possible to amend the section to remove the injustice, while at the same time reiterating the specific and special position of the armed forces?
§ Mr. Churchill
Over the past three years of the inquiry those matters were considered at great length and in detail by the Ministry of Defence. The outcome of my hon. and right hon. Friends' deliberations was that there was no longer any justification, in peacetime, for service men and women to be denied their rights. I do not believe that it is right for those on training exercises to have their lives jeopardised or brought to an early and sorry end, such as in the case that I have cited. Such a result clearly demonstrates negligence on the part of those organising the training. If it means that the organisers will be more careful in the future, that is right and proper.
The Bill is brief. It seeks to repeal, from the date of enactment, section 10 of the 1947 Act, while retaining the power to reactivate that section in the event of actual or impending hostilities or at a time of great national emergency. Reimposition would be effected—the precise terms of reimposition would be defined—in an order by the Secretary of State by statutory instrument, subject to negative resolution by either House of Parliament. I believe that it is a commonly held view that there would be a need to reactivate the provision of section 10 in combat conditions. If that is what my hon. Friend the Member for Wirral, South (Mr. Porter) was alluding to, I accept his point.
It would be unrealistic to expect service men engaged in battle to have the right to sue their fellow service men or officers for negligence. Clause 2 providesfor the revival of section 10 if it appears necessary or expedient to the Secretary of State to revive it——such as a major insurrection or an invasion or—
- (a) when national danger is imminent or a great emergency has arisen,"for the purposes of warlike operations in any part of the world outside the United Kingdom or other operations outside the United Kingdom in connection with warlike activity.Such activity may include military or peacekeeping operations in a combat area such as the middle east.
Clause 1 retains the general provision that section 10 will continue to have effect in relation to wrongful acts or 572 omissions that gave rise to injury committed before the date of enactment. In other words, the Bill will not be retrospective.
Successive Governments have resisted retrospective legislation as a basic concept, especially where such legislation imposes a retrospective liability on others. Secondly, it would clearly be wrong to impose retrospective liability on a service man for past actions, even if the Crown, his employer, were to stand behind him. That would involve individuals who are alleged to be guilty of negligence over the years being brought to book in a court of law for actions which, at the time they were committed, they were not liable under the law. That is a strong argument against retrospective legislation. Thirdly, the questions have to be asked, where should the line be drawn in dealing with past claims so as to be fair and just towards all claimants? How could there be a logical cut-off point for considering claims either by the Ministry of Defence or by the courts? How could those whose claims fell on the wrong side of an arbitrary line be satisfied? How could the Ministry of Defence, and ultimately the courts, be expected to assess old cases where the necessary documentary evidence or witnesses are no longer available?
Those are practical answers to which, sadly, there are no ready answers. For that reason, I believe that the only reasonable course of action is to legislate for the repeal of section 10 from the date of enactment. I recognise that this will be a bitter disappointment to the families of victims of section 10 who have campaigned so hard to secure a change in the law. Sadly for them, it will only benefit others.
Clauses 3, 4 and 5 are largely technical and deal with consequential adaptions of existing enactments, financial implications and interpretation and extent respectively. I must confess that there is one aspect of my Bill about which I am not entirely happy. I refer to the financial and manpower implications, which, as hon. Members will appreciate, are strictly in the domain of Government. As a private Member, I cannot commit public expenditure. Only the Government can do that. Indeed, the Bill will require the Government to introduce a money resolution, because without that all our discussions today will be in vain.
The explanatory and financial memorandum to the Bill sets out the financial and public service manpower effects. I must freely acknowledge the debt that I owe to my hon. Friend the Minister, his officials and the Treasury Solicitor for drawing up the Bill. In the circumstances. what I am about to say may be thought churlish or ungrateful, though it is not intended to be either.
When I first saw that very nearly half the total financial provision required to implement the Bill —£9.3 million out of a total of £19.75 million—was to go on legal fees and administration, I was appalled. When I went on to read that the Treasury Solicitor's Department proposed to take on 52 additional staff at an annual average cost of £32,000 each, and that on top of that "legal and other costs" would account for an additional £6.6 million. I was outraged.
I have to tell my hon. Friend the Minister that my sense of outrage has not diminished and that it is shared by almost every colleague learned in the law whom I have consulted since the Bill was published. I must ask my hon. Friend to ensure that these arrangements are looked at again, for they are not satisfactory. It is difficult to avoid 573 the conclusion that somebody, somewhere, is trying something on, and I am not prepared to have my Bill used as a vehicle for what might be called generating jobs for the boys.
I have a suggestion to make in this regard. Rather than allow the Treasury Solicitor's Department to take on a whole raft of expensive legal advisers to prepare for more and more vexatious and costly litigation, which it is estimated will swallow up 47 per cent. of the provision to be made under the Bill, the compensation offered by the Ministry of Defence should be so self-evidently fair that the number of cases that go to court is minimal. The overwhelming majority of the resources set aside for the Bill could then be applied to the purpose that Parliament intends — compensating the injured and the bereaved rather than lining the pockets of a gilded array of expensive legal parasites.
§ Mr. Harry Greenway (Ealing, North)
This is crucial. Does my hon. Friend think that it would be desirable for these legal matters to be put out to private solicitors, who, though expensive, would be much less expensive than those to whom he has referred?
§ Mr. Churchill
That is an interesting suggestion which I am sure my hon. Friend the Minister will want to consider. In view of my various forays into the law, I know that even private enterprise lawyers can be inordinately expensive. I am not entirely sure that what my hon. Friend suggests would save money.
What I should like, and what I venture to think the House would like, is for the Government to say, "Here is an injustice. We are prepared to remedy it and to set aside about £20 million to achieve that." Generous compensation should be made. The overwhelming proportion of the £20 million should go to the victims, not the lawyers. The compensation that has been offered recently has patently not been fair, but if it was, somebody who chose to go to law might risk having compensation reduced. I believe that the House wants a far greater proportion of the money to go to victims.
§ Mr. Toby Jessel (Twickenham)
Can my hon. Friend give the House any idea of the probable number of cases that would have to be considered each year?
§ Mr. Churchill
It is difficult to do that. Inquiries have been made of the Ministry of Defence. As far as I am aware, no clear estimate can be produced, although Ministers must have had some guesstimate presented to them to be able to come up with the figures and for the Treasury Solicitor's Department to assess the staffing levels that would be required.
If it proved possible to deal with 90 or 95 per cent. of cases on the equivalent of a no-fault basis without going to litigation, the number of staff required and the cost of legal fees would fall dramatically. That is why I suggest a transfer of resources from the legal profession and administration to compensation for victims.
§ Mr. John Powley (Norwich, South)
My hon. Friend said that a guesstimate had been made. Can he say whether it is in tens, fifties, or hundreds?
§ Mr. Churchill
As I said before, the financial memorandum is very much the responsibility of the Government. No doubt my hon. Friend the Minister will 574 try to catch the Chair's eye, whereupon he might be able to provide the answer, which, I am afraid. I am not equipped to provide.
§ Mr. Porter
I do not think my hon. Friend realises that what he is saying goes to the heart of the Bill. The Bill allows a member of the armed services to sue in tort. That involves a civil wrong, and a civil wrong must be proved. All these gilded parasites, of which I have the honour to be one, are necessary in a new and specialised form of law, I should have thought. I agree that the Treasury will make as much out of it as it can, and I agree with my hon. Friend about that. If he is seeking a no-fault form of compensation for the armed forces, that is a very different matter from what the Bill suggests, which is the ability to prove a civil wrong.
§ Mr. Churchill
My hon. Friend is correct. I am not suggesting that we should move to a no-fault scheme, but I hope that the compensation scheme operated by the Ministry of Defence will be analogous to such a system, to the extent that by providing generous compensation the overwhelming majority of victims and their dependants will recognise that the system is fair and that if they were to go to the courts there might be two or three years of anxiety and worry, only to find at the end of the day that the had received less than the generous provision that had been made for them. It would still be their right, of course, to sue through the courts of law, which is the right of any citizen other than those serving in the armed forces.
With the one exception of the financial and manpower provisions, which I trust my hon. Friend the Under-Secretary of State for the Armed Forces will endeavour to rectify before the Bill reaches the statute book—which with the all-party support that it enjoys I am confident that it will — I commend to the House this Bill which will provide justice for the men and women of the armed forces who serve their sovereign and our nation with such loyalty, courage and dedication and who are entitled to look to us in this House to safeguard their rights.
§ Mr. Jack Ashley (Stoke-on-Trent, South)
This is a historic day for the armed forces. We are beginning the process of sweeping away legislation which has deprived service men and women of rights that have been enjoyed by everyone else, including all other public servants, such as police and firemen. I welcome the Bill warmly because it will remove an injustice, and I warmly congratulate the hon. Member for Davyhulme (Mr. Churchill) on his luck in the ballot, his choice of subject and his splendid speech.
I disagree profoundly, however, with what the hon. Member for Davyhulme said about retrospection. He was utterly and totally wrong, as I hope to prove shortly. His argument against retrospection was invalid and I was sorry to see Conservative Members nodding when he was advancing it. The case for retrospection is a powerful one and I deplore any quibbling about costs, whether they be hundreds, thousands or millions of pounds. If negligence is proved, the cash should be found by the Ministry of Defence, and if it is proved that there was negligence in the past cash should be found for people disabled in the past.
The House should be ashamed that it has allowed section 10 of the Crown Proceedings Act 1947 to remain on the statute book for 40 years. I echo what J. S. C. Reid, 575 later Lord Reid, said when he denounced the thinking behind the clause, as it then was, when the Bill was before the House in 1947. He condemned it asa piece of departmental obscurantism and nothing else.I support that view—a view that was expressed strongly at the time but was disregarded. In his excellent brief on the subject, John Poole, who does such marvellous work in the Library, quoted an article in the New Law Journal. Describing the passage of the 1947 measure, the author of that article stated:There was much well-informed and cogent criticism of the clause on the part of a number of lawyer MPs, which the speeches of the Attorney-General and Lord Advocate by no means fully answered.As the hon. Member for Davyhulme rightly said, those Law Officers were members of a Labour Government, so it is not a party point. It is also true that they failed to answer the objections to section 10, although the case against it was strong then—and it is even stronger now.
Departmental obscurantism did not appear for the first time in 1947 and we have faced it throughout the campaign to abolish section 10. The Ministry of Defence has claimed that there is no clear difference between military and peaceful action. I am not joking—it has actually made that claim. Is it really suggested that there is no difference between men shooting and being shot at and those carrying out day-to-day non-combative duties? It is hard to believe that such a case could be advanced by the Ministry. We have been told that discipline would be imperilled if we abolished section 10. Does anyone really imagine that there would be mutiny in the Army or the Navy merely because we gave service men and service women the right to sue? We have also been told that negligence would be hard to prove, but does that mean that there is no point in trying to prove it? That is an absurd doctrine for the Ministry of Defence to peddle to Members of Parliament and members of the armed forces. We have been told, too, that the alternative provisions are very good, although every service man who has been disabled as a result of negligence knows that they are extremely bad. Those are examples of the sort of bumbledum that the Ministry has ued to disguise the great injustice suffered by service men and women.
When the most recent campaign to abolish section 10 was launched, stories of what had happened to service personnel came tumbling out. They were tragic human horror stories of service personnel being maimed or killed by, for example, ropes being cut by others abseiling down cliffs, missiles backfiring, vats of poisonous liquid overturning, tanks and lorries creating havoc, backs broken, skulls broken and hearts broken. There were also serious burns. Those are the facts that have come to light since the campaign was launched. Many people are suffering a lifetime of disability, some of them confined to wheelchairs for life, and in some instances young men and women have been killed. All this has happened while personnel have been on non-combative duties.
Service men and women risk their lives in time of war—that is an acceptable doctrine—but they are entitled to defence against negligence in peacetime. The largest group of protestors against section 10 are the nuclear test veterans. About 20,000 took part in the atomic tests in Australia and the south pacific in the 1950s and the 1960s. In those days, the defence authorities' attitude to 576 protection seemed as casual as if they had been at a Guy Fawkes bonfire party. But was that really so? I do not think that it was.
A document marked "Top Secret" and dated 20 May 1953 from the Defence Research Policy Committee to the Chiefs of Staff states:The Army must discover the detailed effects of various types of explosion on equipment, stores and men with and without protection.That means that soldiers must—it is not my word, but the word used in that secret document, must—be guinea pigs in discovering the effects of the explosions, without protection. Some of those men suffered grotesque and horrible deaths—there is no doubt or dispute about that — and others are still suffering severely. Anyone enduring such ordeals and written about in that way by military officials should at least have the right to some special consideration.
The ugly thread of alleged negligence runs through all those horror stories about the atomic tests as well as through the cases mentioned by the hon. Member for Davyhulme and those that I have described. The victims have been denied the right to seek legal redress, as have the relatives of the men and women who died. In many cases, they have been denied information about what happened and how and why it happened. That lack of information upsets the people involved and the bereaved relatives. and I am glad that the Member for Davyhulme referred to it because it is a scandal which must be reversed. We have had 40 years of evasion, cover-up and denial of justice. I should emphasise that I exclude the Secretary of State and the Under-Secretary of State for the Armed Forces from those criticisms as they have given the campaigners a fair hearing. I go further and congratulate them on the decision that they have made. It is the right decision and I appreciate it very much, as do the people involved.
I have been proud to work with the campaigners and to lead the parliamentary side of the campaign. I should pay a special tribute to the clumsily named Section Ten Abolition Group, which has been nicely abbreviated to STAG, and to Carol Mills, who tragically lost her own son through alleged negligence. She has led STAG with intelligence, determination, imagination and diplomacy and I congratulate her and her associates, many of whom have been put to a great deal of trouble and have travelled from all parts of the country. Many of them are severely disabled and have joined lobbies and deputations at great cost to themselves. All future members of the armed forces will be indebted to them. I also pay tribute to the British Nuclear Test Veterans Association and to the British Atomic Veterans Association, which have been so ably led by Ken McGinley, Sheila Gray and Tom Armstrong. Today those people celebrate a great victory.
Like Winston Churchill, the great war leader, I believe that one should be magnanimous in giving us this victory. Their refusal to grant retrospective provisions for those who are already disabled arouses the suspicion—I put it no higher than that—that they are simply giving way as little as possible to intense political pressure.
The exclusion of service personnel who are already disabled is a shabby act of betrayal because it excludes loyal people who have placed their trust in the armed forces, people who have been willing to risk their lives—and who have lost their health—in the service of their country. It also excludes the very people who have campaigned successfully for a change in the law. If service 577 personnel of today and tomorrow are entitled to seek legal redress, as the Bill provides, the disabled personnel of yesterday are equally entitled to do so.
I know that some hon. Members are unenthusiastic about retrospective legislation—I will give way to any hon. Member who wishes to intervene — but I had hoped that they would recognise the vital distinction between retrospective penal legislation, which is utterly unacceptable, and the retrospective legislation that I seek, which would give the same rights to all service men and ex-service men.
Retrospective legislation to abolish section 10 would not punish anyone, and it is wrong to assume that it would. I will explain why. The Under-Secretary of State for the Armed Forces stated in a written answer to me:Where one service man is sued by another for alleged negligence arising out of the execution of his duties my Department will stand behind him and will meet the cost of any damages awarded against him".—[Official Report, 16 December 1986; Vol. 107, c. 501.]I welcome that assurance from the Minister. The whole point is that the costs would be borne not by the man found to have been negligent but, on that assurance from the Minister, by the Ministry of Defence. There would thus be no penalty on the individual concerned but there would be a benefit to the person disabled as a result of the negligence.
If the House gives the Bill a Second Reading, I propose to table an amendment in Committee to make retrospective provision for the abolition of section 10 so that people who are already disabled can benefit from this valuable legislation. There are countless parliamentary precedents for remedial legislation in the past 400 years. I shall not go into detail now, but there was remedial legislation in the House of Commons in the 16th century and there have been countless examples ever since. Parliament has shown its generosity by remedial legislation in the past, but I am not asking for generosity today. I am asking for justice for people who are already disabled, who have risked their lives and lost their health in the service of their country.
§ Mrs. Virginia Bottomley (Surrey, South-West)
I express my appreciation to my hon. Friend the Member for Davyhulme (Mr. Churchill) for choosing this subject for his private Member's Bill. I supported him a year ago, and I have more confidence that this Bill will reach the statute book and redress a clear grievance and anomaly. I also express my appreciation to the right hon. Member for Stoke-on-Trent, South (Mr. Ashley) for his enormous efforts. I was present at the inaugural meeting of the Section Ten Abolition Group in the Jubilee Room and have taken a close interest in the development of the campaign. Obviously, I also appreciate the assistance given by my hon. Friend the Parliamentary Under-Secretary of State and others in refining the measure.
Section 10 of the Crown Proceedings Act 1947, although clearly well intentioned at the time, has resulted in what now seems to be a great injustice, that service men killed or injured while on duty are uniquely denied the right to sue for negligence. The Bill would place service personnel on an equal footing with civilians and civil servants and they would be able to secure the same level 578 of compensation. It has been well pointed out that there is no justification for service men not having the same rights as civil servants in the Ministry of Defence.
Families of service men killed by negligence would have the same rights to sue and they would be entitled to obtain full details about what happened. The right hon. Member for Stoke-on-Trent, South highlighted how often a lack of information from the Ministry of Defence can fuel a justifiable sense of grievance and loss. Ignorance and a sense of not being given all the facts impose a great extra burden at a difficult time.
In 1947 the Government's position was fairly uncritically endorsed, although some expressed misgivings. It seems that the then Attorney-General did not intend to penalise service men, but rather to protect their position. It assumed that if a service man was injured or remained in the forces he would receive proper treatment and that if he was invalided out or died he and his dependants would have pension rights. Clearly, much depends on the value of those pension rights.
In the development of compensation for all sorts of injury we are moving away from the concept that the situation where the accident took place, whether at work, on the street or at home, is important. There is no sense of justice in having entirely different compensation arrangements depending on where the accident happened, as opposed to the long-term debilitating effects. Clearly, in times of war there may be a clear-cut distinction between military and other action, but in peacetime that distinction is not nearly so clear.
My hon. Friend made great play of retrospective legislation and the extent to which this opportunity should be taken to meet the grievances of those who have already suffered. Clearly, it is the right, indeed the prerogative, of the Opposition in particular to say that a Government are not doing enough. My view is that it would be hard on those service men who were previously involved to have their cases reopened. I wonder whether there may be a middle way. I understand that with pneumoconiosis a special compensation fund was introduced to assist those who had already suffered, without giving them the full rights of those who may be affected in future.
As so often happens to hon. Members when they seek changes and reforms, my direct experience of this problem started with my contact with a constituent. I was approached by Lt. Cdr. Mocatta in March 1985. He was a naval officer until 1964 when he retired at his request to work as a sales engineer in the mechanical engineering industry. Until September 1984 he enjoyed excellent health, but that year he went into hospital and after various investigations and operations, mesothelioma—a chest cancer resulting from prolonged contact with asbestos—was diagnosed. As an engineering officer for many years he had come into contact with asbestos dust during refit periods in the dockyards and in civilian ship repair yards. He came to see me on several occasions and over subsequent months I wrote to the Department and others several times to press his case.
Cdr. Mocatta always put the case clearly and fairly, arguing that others in his position should have the same considerations as civilians. He never overstated the case, but put if forcefully and movingly. One of his letters states:it seems grossly unfair that serving and retired members of Her Majesty's Forces are barred from being able to claim compensation in respect of the killer diseases like asbestosis and mesothelioma where as Industrial Civil Servants and 579 Civilians, under existing Health and Safety legislation, are able to. It also seems equally grossly unfair that in the event of death of serving and retired members of Her Majesty's Forces their wives and dependants are similarly barred from claiming compensation, where as the dependants of Civil Servants and Civilians can.Throughout our correspondence he was particularly concerned about the effects on his widow and dependent children.
During his difficulties Cdr. Mocatta received great help from the Royal British Legion and the Society for the Prevention of Asbestosis and other Industrial Diseases. His family with many others joined STAG when it started. I pay tribute to voluntary groups which give practical and emotional support to individuals and campaign effectively for changes in legislation. I hope that that is what we shall see today.
Cdr. Mocatta's struggle to secure his rights as his condition deteriorated is a further example of the fact that, however well intentioned our legislation, it is complex and troublesome to establish what is available, how one gets a war disability pension, and how one qualifies under the industrial injuries scheme and for a war widows pension. It is difficult to circumvent and struggle through the labyrinthine complexity of our welfare and Whitehall bureaucracy. On the whole, people are well intentioned, but the delays, appeals and difficulties at a time of great family unhappiness and stress must never be forgotten when we introduce legislation.
I support the Bill because it simplifies rather than pleads a special case. It seeks to give service men the same rights as civilians rather than to do what is easy in welfare legislation: find a special case, add another little benefit for that category of people and then another little benefit for another category. During our debates we frequently enthuse about how we hope to redress a grievance, but in reality we add to the work of our welfare rights officers and lawyers who must get through the maze of benefits available.
I have no hesitation in supporting the Bill. I see it as part of a general re-evaluation of the role of Crown immunity. It is an obscure concept to many, dating from the medieval maxim that the king cannot be sued in his own courts. There may still be areas where Crown immunity is useful, but I welcome its gentle erosion.
Only last year my right hon. Friend the Secretary of State for Social Services agreed to abolish Crown immunity in National Health Service hospitals for food, health and safety legislation. In the NHS, Crown immunity had become too easy an excuse for inaction. I hasten to add that the hospital kitchens in my constituency have won prizes for being the cleanest in the region. Now NHS hospitals will risk prosecution, like any other private agency, if their kitchens and premises are not up to standard.
The Bill is sensible and important and will redress a long-standing grievance. A letter from the widow of Cdr. Mocatta reads:It is less than a year since the Section Ten Abolition Group (S.T.A.G.) was formed.The first meeting took place shortly after her husband was informed that there was little hope for him and, sadly, he died a month later.As the first anniversary of my husband's death is approaching I know how delighted he would have been that in the future Service personnel and their families will have the same right as any other citizen in the case of an accident or industrial disease.580 She speaks for many. I congratulate my hon. Friend the Member for Davyhulme on bringing forward this important measure.
§ Mr. John Cartwright (Woolwich)
Like other hon. Members who have spoken in this debate, I congratulate the hon. Member for Davyhulme (Mr. Churchill) on his good fortune in the ballot and on using his opportunity in such a constructive and positive way by bringing in this legislation. We appreciate the lead that the right hon. Member for Stoke-on-Trent, South (Mr. Ashley) has given on this issue. As with many other issues, he has alerted us to injustice and shown us ways in which that injustice can be corrected. The Bill corrects a basic injustice and re-establishes what I imagine most people believe to be the case, that everyone is equal before the law.
Those of us who represent traditional service constituencies take the view that service men already make enough sacrifices on our behalf. The difficulty of ensuring that their standards keep pace with those that exist outside the services is a continuing problem. Many of us are beginning to realise that it will not always be easy to attract into the services or, more important, to retain within the services men and women with the skills and expertise that we shall need in an increasingly sophisticated set of armed forces. We shall certainly not do that if we continue to enshrine in legislation the concept of treating our service men differently from other members of our community and putting them at considerable legal disadvantage. It may be the case at the moment that young recruits sign away their rights without understanding what they are doing. I suspect that that will not continue in an increasingly aware society.
Like others, I read with great interest the extremely helpful research note produced by the Library on this issue. I add my commendation to those already made in the debate. When looking at the history of the 1947 legislation I was fascinated to see that, even in those days, Ministers introducing such legislation were clearly not totally satisfied that it met certain neeeds. Certainly the Lord Chancellor at the time, the then Viscount Jowitt, gave a clear impression, both on Second Reading and in Committee, that he was under some pressure from the services. On Second Reading he said:this clause … is one of the clauses that I have been pressed and indeed compelled by the Service Departments to insert in order to overcome the misgivings or, if you like, the reluctance which they feel, and have traditionally felt, about the introduction of the Bill."—[Official Report, House of Lords, 4 March 1947; Vol. 146, c. 69.]
That statement gave the background to the matter. The forces were reluctant to see such rights being given to service men. Indeed, Viscount Jowitt was even more blunt in Committee, when he said:The short and the long of it is that I am under an obligation either to get this clause as it is or to withdraw my Bill."—[Official Report, House of Lords, 13 March 1947; Vol. 146, c. 382.]He could not have put the situation more clearly.
The problem has been that, over the years, the services and service Ministers have argued that giving service men such rights was either not necessary or involved insuperable problems. As other hon. Members have mentioned already, the argument ran that service men who suffered as a result of negligence would be able to obtain, through pension rights and other benefits, sums 581 comparable to what could be gained by legal action through the courts. The hon. Member for Davyhulme pointed out, and, to be fair, Ministers have accepted, that this is no longer the situation. That argument certainly has not stood up to close examination for some time, and does not stand up to close examination today.
There was a curious argument that it was difficult, if not impossible, to establish a clear dividing line between injuries sustained in military action and injuries sustained in other service activities. Again, that argument no longer holds good. The issue has been skilfully dealt with in the drafting of the Bill.
It is argued also that negligence is hard to prove within the services. Of course it is, but negligence is hard to prove in civilian life, too. The onus is always on the person who takes legal action to prove his case. I cannot see that service men should be in any different position from those outside the services.
Then there is the curious argument about which the right hon. Member for Stoke-on-Trent, South reminded us, that somehow discipline in the services will be undermined if service men are given the same rights as those outside the services. The reverse might be true. The morale of service men might be a great deal higher if they knew that they have certain basic rights. If those rights are taken away from them, or if they realise that they are to be put at a disadvantage, their morale might suffer and discipline problems might be a good deal worse than they would be if service men were to be given their full rights.
Like the hon. Member for Davyhulme, I examined with some incredulity the financial and public service manpower effects of the Bill as set out in the explanatory and financial memorandum. My examination of the background of the issue shows that the Ministry of Defence has always been extremely reluctant to try to make any estimate of the number of people who are affected by section 10.
Clearly, somebody made some estimates when drawing up this part of the memorandum. It says that it is difficult to make reliable estimates. We all understand that point. If it can be argued that 52 additional staff in the Treasury Solicitor's office and 15 additional staff in the Ministry of Defence are needed, somebody must have estimated the number of cases that will come forward. It will be helpful to have some idea about that matter from the Minister.
My main concern was underlined by the hon. Member for Davyhulme. If hon. Members consider the proportion of funds estimated to be needed to compensate those who have suffered and the proportion that will go in legal costs, administration and so on, it suggests—I put it no higher than this— that a great deal of effort will be directed towards resisting claims and applications, and rather less towards helping those who may suffer as a result of negligence. The Minister may regard that assessment as unfair. I hope that he will reassure us on this point. The bald figures, as set out on the face of the Bill, do not appear to be tremendously encouraging.
On the difficult issue of retrospection, the Secretary of State is quoted as saying that legislation is for the future and, therefore, the issue of retrospection cannot be addressed in the Bill. That would be a more powerful argument if we did not know that Governments of all persuasions introduce retrospective legislation when they deem it to be in the national interest. All hon. Members 582 could think of examples. The concept that legislation must always be for the future is not a valid argument against retrospection in this case.
The hon. Member for Davyhulme referred to the fact that if we introduce the principle of retrospection we shall to some extent jeopardise service men who might be accused of negligence in relation to activities that took place a long time ago. I accept that as an argument against retrospection, although I accept, too, that if the Ministry of Defence stands behind those service men they will have no immediate financial liability. However, there is a natural concern that something that took place a long time ago may be dragged up and ex-service men may find themselves put at a considerable disadvantage as a result. That argument is much more persuasive than the argument that legislation should be for the future.
The most difficult problem about retrospection is the third one to which the hon. Member for Davyhulme referred — that is, where one draws the dividing line. How far back does one enable someone, or, indeed, his heirs and successors, to go? That is a more difficult issue. The problem that we must address is one that we often face, that, in trying to correct one injustice, we appear to create another. That should weigh very heavily with us.
If we consider only what will happen in the future and appear to be doing nothing to help those who have suffered in the past, the public will be rightly concerned, and in Committee we must try to find a way round that problem. This relates particularly to the veterans of nuclear weapons testing. The Government have repeatedly said that no service men have suffered from nuclear weapons testing. I do not necessarily accept that statement. If, however, that is the case, I cannot understand why they should be so reluctant to argue it out in the courts.
If the Government believe that they are right and that they can prove that no service men have suffered from being involved in nuclear weapons testing, why should their case and the cases of those who believe that they have suffered not be tested in the courts? That would be a far better way of dealing with the problem than simply hiding behind the argument about retrospective legislation.
I agree with the hon. Member for Surrey, South-West (Mrs. Bottomley) that we should seek to remove generally the outdated, medieval concept of Crown immunity. The hon. Lady said that she would prefer a gentle erosion of Crown immunity. I should prefer a wholesale reexamination of that concept. Instead of it being done on a piecemeal basis — a bit here, a bit there, and a bit somewhere else—I should prefer the Government to say that they are prepared to give up Crown immunity completely. If, however, the Government believe that Crown immunity is needed in certain key, specific areas, let them make a case for retaining it. That would be very much better understood by the general public.
I strongly support the Bill, but I hope that in Committee we will look in more detail at the retrospective aspect of what is being done. The public will expect Parliament not just to remove a potential injustice for serving and future service men. They will just as much want Parliament to introduce the concept of justice for those who have suffered in the past.
§ Mr. Lewis Stevens (Nuneaton)
I congratulate my hon. Friend the Member for Davyhulme (Mr. Churchill) on 583 selecting this subject for his private Member's Bill and also on the way in which he introduced it. Also I pay tribute to the work that is being done on behalf of those who have been affected by section 10 of the Crown Proceedings Act 1947 by the right hon. Member for Stoke-on-Trent, South (Mr. Ashley). He has worked hard to bring the matter to the attention of the public and to persuade the House and the Ministry of Defence that action needs to be taken.
I welcome almost every aspect of the Bill. It will put service men and service women on exactly the same basis as other people. They will be protected against negligence while they serve in the armed forces. However, we cannot ignore completely the problem of retrospection. It will not go away. The effect of the Bill is that section 10 is no longer necessary and that it is outdated. Many people have believed that to be so for many years, but one should be able to look back and consider who should have been protected. The right hon. Member for Stoke-on-Trent, South said that in Committee he will move an amendment to that effect. I shall support it.
I appreciate that there may be difficulties. The hon. Member for Woolwich (Mr. Cartwright) asked, where do we draw the line? If we said that all cases could be dealt with, no matter how old they were, theoretically cases that arose before the introduction of section 10 could be considered. That would be unfair. Although complications would be introduced into what at the moment is a simple and easily understandable Bill, we must consider where to draw the line.
Service men who are injured are known to receive less compensation than they would receive in the civil courts. That was not the intention of the 1947 Act. It was thought that there would be little difference between civilian and service awards. My right hon. Friend the Secretary of State for Defence has confirmed that in most cases there is now a substantial difference between the two. Now, therefore, is the time for it to go, but how far back did that difference arise? When was the balance destroyed between what was awarded to service personnel who were injured and had to leave the services because of disablement and what was awarded in civilian courts? I do not know the answer to that question. I hope that the Ministry of Defence will deal with it, because it may provide us with a guideline.
The right hon. Member for Stoke-on-Trent, South referred to the fact that many people believe that they are deprived of information, particularly when children or next of kin have been killed. Under section 10 there is no likelihood of suing the Minister of Defence, and that creates uncertainty. People wonder what really happened and whether they were told the truth.
In my constituency there was the unfortunate case of Lance-Corporal Maria Hornsby who was tragically killed in a car accident in Northern Ireland. My hon. Friend the Parliamentary Under-Secretary of State for the Armed Forces has been kind enough to answer several letters that I have written to him on the subject. Part of the problem is that nothing can be done about that fatality and tragic loss and there is uncertainty about what really happened. Those who are left wonder what really happened. If they were able to take the Ministry of Defence to court there might be compensation for them, but that is not the main issue. People would then be satisfied about what had happened to those who were very special to them.
Many members of the armed services who have been killed or injured were very young, and many of them—as was this young lady—were excellent athletes. They 584 had before them a glowing future and they were thoroughly enjoying life. In many cases they also enjoyed life in the armed forces.
When service men are injured people should also he able to know what happened, but in the event of injury and, possibly, disability there is a closed door because of section 10. What happened is not made clear and those who were involved do not know the full story. I hope that my hon. Friend will correct me if I am wrong about that, but my impression is that in the case of both death and disability little information is given to those involved, which provides little satisfaction or comfort for them.
I am surprised at the cost quoted in the financial memorandum. I always thought that if no great sum of money was involved that was a good reason to get rid of section 10 because the cost would not create a major problem. If a large sum was involved, that was an equally sound reason to abolish the section because it was obviously working unfairly.
I share the concern expressed earlier by my hon. Friend the Member for Davyhulme that so much money has been allocated in the explanatory and financial memorandum to meet the legal requirements associated with abolition. I have always been keen to reduce the amount of legislation. Every Government during the past 10 years has produced too much legislation. That creates work for the legal profession. It appears that the repeal of section 10 will create much legal work.
I appreciate that, with retrospection, early cases would need to be taken fully through the legal process to determine precedents. However, it is possible that, those precedents having been set, many subsequent cases, as with many civil claims, could be settled out of court. I hope that the involvement of the legal fraternity and the necessary administration will not mean prolonged high costs.
In dealing with these issues, we shall encounter many complications, given the wide range of cases that may be initiated. However, I hope that, when the Bill goes through, my hon. Friend the Under-Secretary will consider carefully with his colleagues at the Department how we may reduce the need for and impact of the legal profession.
It is necessary to keep that to the minimum because of the long time that claimants may have to wait, as can happen with the legal process. For some that will create problems. They may need an immediate settlement.
At present, according to section 10, since men are not liable while they are on duty and while they areon any land, premises, ship, aircraft, or vehicle for the time being used for the purposes of the armed forces or the Crown;it is hard to say on how few occasions they do not come under the Act. It covers such a wide spread that members of the armed forces, other than when they are out relaxing and not involved in the forces in any way, are covered by section 10. That does not give much scope to people in the armed forces to claim for anything other than a normal civil accident or something of that sort.
I welcome the Bill and I hope and expect that it will go through without opposition. Although I support the idea that some retrospection is necessary, and I hope that that will be part of the Bill, I hope that the moves on retrospection will not prevent the Bill from going forward. If the Bill does not include retrospection, the issue will 585 return to us time and time again. I beg my right hon. Friend the Secretary of State and his Ministers to consider carefully the possibility of some form of retrospection.
§ 11.3 am
§ Mr. Kevin McNamara (Kingston upon Hull, North)
The Bill repeals section 10 of the Crown Proceedings Act 1947, which section deprives service men and ex-service men of the right to sue for negligence, no matter how seriously disabled they may be. It also deprives families of service men who are killed by negligence of the right to sue.
During the proceedings of the Select Committee on the Armed Forces Bill on 24 March 1986 the official Opposition moved an amendment to the report of the Committee. After rehearsing section 10 of the Crown Proceedings Act, we said:The consequence of this provision is an apparent denial of natural justice to the service men involved. It places them in a less fortunate position than a civilian injured in a similar accident, and applies where a service man is not facing an enemy, nor subject to harassment or attack from hostile forces. It is understood that a departmental inquiry is being conducted into this matter by the MOD, but as yet no indication has been given by the MOD, of when it is likely to report, if the report is to be published and whether the Department accepts the main thrust of public concern and criticism of Section 10. The Committee therefore recommends that as a matter of urgency the Department should expedite its inquiries and that its report be published before the end of this Session of Parliament with a view to introducing any necessary amending legislation to Section 10 of the Crown Proceedings Act in the next Session of Parliament.The Minister who is to reply to the debate today, the Minister of State and his Parliamentary Private Secretary voted against that provision. However, happily, in the same sort of flash of conversion as happened to St. Paul on the road to Damascus, they saw yet again the wisdom of the Opposition's case and brought forward the Bill as a matter of urgency.
§ Mr. Churchill
§ Mr. McNamara
With respect to the hon. Gentleman, I shall finish this point of my speech and then give way. The Government have brought forward the Bill as a matter of urgency. They have seen the importance of the matter, and I understand why they did not seek to tell Select Committee the way in which their thoughts were going. I welcome the step that the Government have taken in introducing the Bill.
§ Mr. Churchill
The hon. Gentleman is doing my right hon. and hon. Friends less than justice. The Labour party does not have a record of which to be proud. It is not for him to say that Conservative Members have been dilatory in accepting the need for a change of law. The Labour party was in power for many years, during which time it could have taken the necessary action. The Labour party did not even do it for the future, let alone for the past. They killed the Bill of Mr. John Loveridge who was then the Member for Upminster.
§ Mr. McNamara
That always proves the foolishness of giving way, because I was going on to castigate former Labour Governments. Having seized upon the point, the hon. Gentleman did not listen to the remainder of my paragraph, in which I was going on to explain that I understood why at that time the Government did not feel that they could make that point to the Select Committee.
586 I am also making the point that the official Opposition had come round to supporting the principle of repealing section 10. That is what we did if one wishes to make a party point, but I was not seeking to do so. I was merely trying to introduce, if necessary, a little bemusement into the debate on the Bill. The official Opposition had the same blinding flash of conversion just four or five months before the Government announced their change on 8 December. As the hon. Gentleman will know, in politics, as in everything else, timing is all. We welcome the decision that the Government made on 8 December. Therefore, I welcome this change that has been made in the policies of Governments of different parties since the introduction of the Act.
I also take this opportunity of congratulating the hon. Member for Davyhulme (Mr. Churchill) on his good luck in the ballot, on introducing this Bill, and on his chivalrous regard for the work that was done on this matter by my right hon. Friend the Member for Stoke-on-Trent, South (Mr. Ashley). If my right hon. Friend had been successful in the ballot, this is the kind of Bill that he would have introduced, though there might have been one or two differences.
I take this opportunity to congratulate the various bodies which have worked so hard to p roduce the pressure upon Governments and upon parties to introduce the alterations embodied in the Bill. I have in mind the British Nuclear Test Veterans Association, chaired by Mr. Ken McGinley, and the Section Ten Abolition Group, STAG for short, which was chaired by Mrs. Carol Mills. They deserve special recognition. Mrs. Mills lost her 18-year-old son Jonathan, an apprentice in the Royal Navy. He was serving his first tour of sea duty and was under instructions when a guided missile was fired by mistake. Jonathan, who stood directly behind the missile, was caught in the full force of the efflux.
The Mills will never get their son back, and numerous other sons, such as Desmond Clingham and Martin Ketterich, will never be able to walk again because they have been paralysed for life. All those people have been denied the opportunity to sue for damages. While money will never replace their lost lives or legs, the principle is important. The denial of natural justice to our service men is the principle that we are seeking to correct in the Bill. It is a belated recognition of an injustice that has been done to the men and women who serve and defend our country.
Section 10 is to be repealed, but cases of injustice will remain and linger. That is one of the problems. Even with the repeal of section 10, there are some matters of concern, not only to the individuals who have been threatened or feel they are under threat, but to the population as a whole. There is the problem of the yet unfinished study by the National Radiological Protection Board of the United Kingdom participants in the atmospheric nuclear weapons tests. The study is investigating two groups — a study group and a control group—to determine the possible effects of radiation produced by nuclear weapons tests. It is concentrated on cancer mortality and morbidity and their association with recorded levels of radiation exposure.
The operations in which our personnel were involved were nuclear weapons testing in Australia and the south Pacific, experimental nuclear work in Maralinga, in the Monte Bello Islands from 1953 to 1956, and in Christmas Island in 1962 and the clean-up operations in Maralinga 587 in the 1960s. It is hoped that the eventual analysis will provide evidence for the incidence of cancer among those who were exposed to radiation on those occasions.
What will happen when conclusions are reached? Under section 10, people who suffered have no right to compensation. It would be helpful to know when exactly the study is to be completed. Originally it was to be finished in 1985, but the completion date has been moved to 1987. We are still waiting. It would be helpful if the Minister could say when it will be completed. As long as it is delayed there will be no way whatsoever in which one can examine the Government's claim thatno one was harmed as a result of exposure to ionising radiation from the United Kingdom test programme." — [Official Report, 14 January 1986; Vol. 89 c. 905]That was said by the then Minister of State for Defence Procurement, the right hon. Member for Kingston upon Thames (Mr. Lamont). Is that a legitimate claim? Even without the results, the protocol to the NRPB study states:It is known from observations on people exposed to substantial radiation doses that high levels of ionising radiation may result in injury or disease. Very high doses may result in almost immediate effects and will often cause early death. It is also generally accepted that effects may be experienced as a result of exposure to lower levels of radiation and that these effects may cause illness, most notably cancer, after the passage of many years".That creates other problems of the limitation period for bringing actions. That is a matter of concern to us.
The leaders of all the parties have received a letter from Mr. McGinley in which he asks them tostate categorically before the next election whether or not you will order a full and open judicial inquiry into the current health of each British ex-service man and civilian who was involved in the British Nuclear tests held in Australia and the Pacific between 1952 and 1958.Also the current health of ex-servicemen who were involved in the American nuclear tests which took place on Christmas Island in 1962.My right hon. Friend the Leader of the Opposition replied:While the survey which is now being conducted by the National Radiological Protection Board is a step forward, it is merely a statistical exercise and does not, and cannot, get to the root of the problem.The next Labour Government, as a matter of urgency and priority, will set up a full judicial inquiry on the lines set out in your letter and we will also consult with your Association on the terms of reference of the inquiry.
§ Mr. Powley
He would say that, wouldn't he?
§ Mr. McNamara
The hon. Gentleman should not say things like that, because I was going on to say that most of the other party leaders have given similar undertakings, although the Prime Minister's was not as firm as those of other Opposition leaders.
The second problem is not only what will happen about Maralinga, which is a specific, urgent, pressing and large-scale test, where negligence might be alleged. On the evidence and documents referred to by my right hon. Friend the Member for Stoke-on-Trent, South, it seems that there was a deliberate attitude by the service chiefs in putting men at risk. That must be of concern to the House and to the nation, and adequate compensation should be given to those who were treated as human guinea pigs in those trials.
Another problem that arises over the repeal of section 10 is that at present it applies only to physical injury to members of the armed forces. The hon. Member for Surrey, South-West (Mrs. Bottomley) referred to this. The 588 Crown is also not responsible for damage to individual service men's property on military land, even if it is damaged as a result of carelessness by service men on duty. The Ministry of Defence will have to consider that. Several cases have come to light, and no doubt there has been correspondence about them in the past.
The House today has to address itself not only to the future, but to the past. Sad cases have been brought before us. Page after page of names have been supplied to us by various bodies. If we accept that there is an evil to be remedied and an injustice to be set aside, what is our attitude to those who have suffered and who have caused us to come to that conclusion? We must also consider their dependants and their families. I listened with considerable care to the arguments of the hon. Member for Davyhulme. Some had force and some were procedural arguments which, while they presented difficulties and raised matters of concern, are problems that we in the House should be prepared to overcome.
What worries me is the extent of the knowledge that the Department has of the number of claims that might be outstanding against it if the legislation is made retrospective, and what that will mean in terms of cost. In the past week I have tabled several questions on this issue and the Government replied that the information can be made available only at disproportionate cost. Unless we have a substantial reply from the Government on the question of retrospection, the House, and certainly the Committee considering the Bill, will explore the issue thoroughly to see whether we can find a way of giving adequate compensation and recompense to the people and their families who have suffered as a result of negligence during their military service.
The hon. Member for Surrey, South-West mentioned a matter with which I have considerable sympathy As she said, there is a precedent on retrospection. It is in the Pneumoconiosis Etc. (Workers' Compensation) Act 1979 and the Pneumoconiosis Etc. (Workers' Compensation) (Determination of Claims) Regulations 1985. Pneumoconiosis often affects miners or people in that industry long after they have stopped working. There is a parallel with those who have suffered damage as a result of exposure to radiation in Australia and elsewhere.
The Pneumoconiosis Etc. (Workers' Compensation) Act 1979 makes:provision for lump sum payments to or in respect of certain persons who are, or were immediately before they died, disabled by pneumoconiosis, byssinosis or diffuse mesothelioma; and for connected purposes.The statutory instrument covering that Act states:no claim shall be considered for payment by the Secretary of State unless it is made within the period of 12 months from the date on which disablement benefit first became payable to that person or, if such benefit becomes payable before the Act came into force, before 4th July 1980.In case people become horrified by what appears to be a limitation, regulation 4(5) reads:Notwithstanding the previous provisions of this Regulation the Secretary of State may extend the period for making any claims referred to in the said provisions for such further period as he considers appropriate, having regard to the circumstances in any particular case.
There is here a precedent for dealing with the radiation problem and for those cases where, bearing in mind the arguments raised by the hon. Member for Davyhulme, it is felt that the difficulty of proving negligence or of settling old scores and worries may be dealt with by the establishment of such a scheme and fund. If we consider 589 the degrees of compensation paid under that scheme, both in lump sums and income, it appears that they are far more generous than the scheme under the armed forces pension scheme which was established to meet negligence cases.
There will be precedent, opportunity and occasion in Committee to consider these matters and explore them further. We have given one and a half cheers to the Department on this matter, and we could on this brief occasion give "three hearty cheers" for the Ministry of Defence if we can deal with the question of retrospective claims.
I share the concern expressed by hon. Members about the rather strange and threatening financial explanations at the beginning of the Bill. I have two criticisms in that regard. When applications have come forward previously for claims, they have not been properly considered as claims for negligence. Secondly, as the hon. Member for Woolwich (Mr. Cartwright) suggested, it appears that we are setting up an MOD defence fund.
We must be careful about husbanding public funds. While we must ensure that only proper claims are recognised and paid, we should lean over backwards to defend the integrity of the MOD. Where there is call for a degree of sympathy and balance, if there is any doubt, the matter should be resolved in favour of the injured person or his family. The system appears to be lacking in generosity. I hope that that is not the case, and that as a result of today's debate and the arguments from both sides of the House section 10 will be repealed and that in Committee we can redress the harm that has been caused to individuals and families.
§ Mr. Porter
Is the hon. Gentleman's argument not in favour of more generosity in terms of gratuities and pensions, rather than a request to the MOD to be generous with public funds when no clear case of negligence has been made?
§ Mr. McNamara
That is not the case. The point at issue is that the amount of compensation — lump sums or pensions—does not match the normal payments made in civilian life. Merely improving the gratuities, increasing the number of payments, or giving the claimant the benefit of any doubt will not overcome the fundamental injustice of the way in which such matters are dealt with in the armed services.
We must consider the cost. It would appear that there is an MOD defence fund rather than an attempt to bend over backwards to help those who have been injured while serving in the defence of our country. If the main thrust and duty of any Government is the defence of the nation, the people upon whom we place that responsibility should be treated generously and, in the circumstances that we have discussed today, they should be given the benefit of the doubt.
To enable the House to move on to more pressing business, I invite the Opposition to support the Bill. If the Opposition have not considered every jot and tittle of the Bill, that is because we believe that the House accepts the principle of the Bill, and we should also accept the principle of the next Bill.
§ Mr. Toby Jessel (Twickenham)
I want warmly to congratulate my hon. Friend the Member for Davyhulme 590 (Mr. Churchill) on bringing forward the Bill and laying it before the House. He has taken a major step towards righting a wrong that has worried many of us for a long time. It is now 40 years—not that any of us present today in the Chamber have been Members for that length of time — since the introduction of the Crown Proceedings Act 1947 with its notorious section 10 which has inflicted so much injustice and unfairness upon certain personnel in the services and their families dependent upon them.
This is a moral issue. It is a matter of justice that service men should not be placed at a disadvantage when compared with their civilian counterparts. It must be a matter of principle that Parliament and the Government should accept that families of service men who are prepared to risk their lives in the service of our country so that the rest of us may live our lives in freedom and peace should not suffer from any injustice in comparison to others. That should always be Government policy. Indeed, it is and has been Government policy in other areas. As an example, I want to quote from a Government circular dating from 1955:That these men should be penalised in this way, solely by reason of the fact that they have been serving their country, is a most grievous injustice which should not be allowed to continue.That related to housing. If it was Government policy in 1955—when Duncan Sandys was Minister of Housing and Local Government—and that policy has often been repeated since, if that is Government policy in relation to housing—admittedly a very important need—the same principle should apply to compensation for the families of those who have lost their lives as an indirect consequence of serving their country as members of the armed forces of the Crown. The circular to which I have referred continues:Sailors, soldiers and airmen, returning to civil life after a period of years in the forces, as often as not possess no fixed abode anywhere at all. To insist, in such circumstances, on a residential qualification is to make it quite impossible for many of them to get their names put on to the housing list, however great may be their need … I consider that an application for a council house, made within one year of his leaving the Forces, by a regular ex-Serviceman, who has found employment in or near the district, or who has family connections with it, should be considered exclusively on the basis of his housing needs without any regard whatsoever to his length of residence in the locality.That circular established that Government policy is that service men as such should not be placed at a disadvantage in civil matters. The same principle should apply to compensation for injuries sustained as a result of being a member of the armed services.
This issue involves not only justice and moral questions. It also relates to the value that we, as Members of Parliament representing our constituents, put upon the armed forces of the Crown. Several hon. Members have Naval, Royal Air Force or Army establishments in their constituencies and can illustrate, by reference to those establishments, the tremendous value that we put upon the work of the Army, the Royal Navy and the Royal Air Force.
I shall illustrate that by reference to the only military establishment in my constituency—the Royal Military School of Music at Kneller Hall, Twickenham. That establishment trains British Army bands which are the envy of the world. It has a high standard of excellence. Military bands lift the nation's spirit. We all feel uplifted 591 by the sight and sound of British Army bands on royal or state occasions. They are among our finest traditions. They contribute to our economy. That is an added reason for the House to put value on the armed forces, their service to the country and their moral right to receive proper and fair compensation if they suffer accidents.
Our military bands help to attract to our shores visitors whose spending generates employment and income and yields tax to the Government. The amount of that yield cannot be measured, but it exists and allowance should be made for it. We should value highly not only our splendid military bands and the place where they are trained, but all the armed forces of the Crown.
Military bands not only enhance morale and help recruiting. Their members serve as medical orderlies in wartime or take on other roles. They have immensely high standards. There is ample justification for our strong support of the Bill which promotes justice and fairness and should command the unqualified support of all hon. Members.
I am worried about the retrospection aspect to which several hon. Members have referred. Ideally we all should like the Bill's provisions to be retrospective. We can understand the feelings of the families who have suffered loss through accident in recent years. One accepts the strength of their case, but I am anxious that if the Bill provides retrospection, many claims going back as long as 30 or 40 years would be made. The evidence in such cases would be of variable quality. Litigation could be enormously expensive and disproportionate to that which would arise on a limited scale in respect of future accidents. I am worried that if hon. Members press for retrospective legislation the Bill's prospects will be damaged. I hope that my hon. Friend the Under-Secretary of State will comment upon that.
The House should examine the argument thoroughly today, in Committee and on Report. With that one reservation, I believe that we should support the Bill wholeheartedly. I hope that not one hon. Member votes against it.
§ Mr. John Powley (Norwich, South)
I commend the Bill and the way in which my hon. Friend the Member for Davyhulme (Mr. Churchill) presented it so succinctly. I hope that the sympathy expressed by hon. Members will be shared by my hon. Friend the Under-Secretary of State, who has always displayed a sympathetic attitude to such matters. Recently I brought a matter to his notice and, although that case will not be covered by the Bill, my representations were received sympathetically. I hope that the same attitude will prevail in my hon. Friend's consideration of the Bill.
I confess to a personal interest in the Bill's progress. My son, who is 21 years of age, signed on 12 months ago as a regular member of the Royal Air Force. My wife and I had no hesitation in commending as a career regular service in the RAF. When considering my son's career we were not aware of the implications of section 10. However, had we known about them, I do not think that we would have changed our minds. A career in the Royal Air Force or in any of the armed forces commends itself to many hon. Members. Many of us have undertaken national service or other types of service with distinction. I wonder how many men in the RAF are aware of the implications of section 10. I doubt whether my son was aware of them. 592 I think that service men should be aware of those implications. I hope that as a result of our discussion today they will become aware of the intended repeal of section 10.
Natural justice will be served in the repeal of section 10. It is logical because in the police and fire services, for example, redress is available if negligence is proved in a court of law. Out of the context of war it is natural justice that a member of the armed forces should be able to seek redress.
There is no Royal Air Force station in my constituency, but right hon. and hon. Members will be aware that East Anglia has a considerable number of RAF stations within its boundary. The station that is twinned with the city of Norwich is RAF Coltishall. a fine station. I visited RAF Coltishall about three weeks ago with some of my Norfolk colleagues. We looked over the establishment to see what goes on and what duties and operations it performs. We looked round the workshops. There are many similarities to a factory workshop—the station services and repairs Tornado aircraft and instruments of high technological content, and a lot of work goes on there. In that context, it was easy to see that mistakes and accidents could happen. I am not suggesting that accidents have happened — none were brought to our notice — but, using one's industrial experience, one could see that they could occur and that there could be cases of negligence. Those who suffer as a consequence of negligence should receive appropriate compensation, just as if the negligence had occurred in a factory where people can seek compensation.
Nobody likes accidents, but we cannot ignore the fact that they occur. With the best will in the world, whatever safety precautions are in force — we saw many of the precautions at RAF Coltishall—acts of negligence can occur in all sorts of peaceful circumstances. In such circumstances, there is no reason why proper compensation should not be paid.
In a speculative mood, I wondered whether over the past 40 years section 10 had made any difference to recruitment in the armed forces. I ask whether, if people are aware of section 10, it has had any effect. Has anybody who has been considering a peace-time career in the armed forces said, "Section 10 is in operation; if an accident were to happen through negligence I could not claim compensation. Therefore, I shall not pursue a career in the armed forces." I do not know whether that has happened, but I pose the question.
Following that argument through a little further, I ask whether the abolition of section 10 under my hon. Friend's Bill will help recruitment in the armed forces. It might help if people knew that, were negligence to occur and were they to suffer some injury, they would be entitled to some form of compensation appropriate to the injury that they had suffered. I ask the Minister to consider that point.
We are talking about possible permanent injury to, in general terms, a young person — nobody of my age would sign up for the RAF or other armed services; I am well past that age. Were anybody to suffer injury through negligence it could affect them for the rest of their lives, for as long as 60 years. They could be incapacitated through somebody else's negligence. That is a long time and they should be entitled to compensation to make their lives a little easier in the event of such negligence.
One accepts the provision in the Bill that in wartime the section should rightly and properly be reintroduced. That is entirely right and proper. Section 10 was passed in 1947. 593 There may have been some justification in it in the circumstances of the time. I wonder how the House would have reacted to the statement by Viscount Jowitt when the then Bill was in Committee in the other place. He said:The long and short of it is that I am under an obligation, either to get this clause as it is or to withdraw my Bill."—[Official Report, House of Lords, 13 March 1947; Vol 146, c. 382.]In my limited experience of this House, and from what I have gleaned of the other place, a statement like that might receive short shrift from right hon. and hon. Members today.
A number of hon. Members on both sides of the House have referred to the costs outlined in the explanatory and financial memorandum. I was horrified at the suggested cost of £20 million and many extra personnel. However I recalled one or two of my experiences in local government before I was elected to the House. I made suggestions to chief officers for various projects that I thought were worthwhile. When it was apparent that the chief officers were not keen on those suggestions, they would start off with "Yes, of course" and then proceed to tell one how difficult it would be, how many staff it would need to implement them and how much they would cost the ratepayers. It was an attempt to dissuade one from proceeding with one's suggestion. It may be a somewhat cynical attitude, but I recognised something of that in the reaction to the Bill. I support proper compensation in proved cases. While there will inevitably be an administrative burden, I hope that the costs will not be as high as they appear to be from the financial memorandum.
I apologise for having intervened in the speech of my hon. Friend the member for Davyhulme, but it is important that some estimate is given of the number of people who might wish to take advantage of the repeal of section 10, and those in a better position than I to judge these matters should be able to give it.
I did my two years' national service, and that limited experience showed me that inevitably there is a barrack room lawyer in one's squad or section. I do not doubt that repeal may precipitate the barrack room lawyer's argument from somebody in the armed forces who is seeking to exploit the situation. I am afraid that we shall have to learn to live with that penalty, as these people exist. However, that should not be a reason against the repeal of this section. It should not inhibit us from passing this legislation, as I hope that we shall, and wishing it well.
Most people in the armed forces are responsible, and would be sensible about claims for compensation, and would not make frivolous or unnecessary claims. I accept that there are such barrack room lawyers, and I mean no disrespect to the legal profession.
§ Mr. Porter
§ Mr. Powley
We all need solicitors and legal advice at some stage. The law might not give us the proper advice that we need if we are disparaging about lawyers. Most people are genuine and act in a responsible manner in such matters.
I hope that retrospection will be considered in more detail in Committee. My inclination, and it is only that, is that retrospective legislation has always been found to have considerable difficulties. I tread carefully about supporting it, and it would need considerable force of argument to persuade me to do so.
594 I hope that the Government will deal with the Bill sympathetically and will assist my hon. Friend in its passage both here and in the other place. I hope, too, that when it is enacted, if it is, the personnel who perform their duties with loyalty and dedication will do so in the knowledge that, should an accident occur and should they suffer a disability, they will receive right and just compensation.
§ Mr. Julian Critchley (Aldershot)
As the hon. Member representing the home of the British Army, I strongly welcome the Bill. I live in Farnham and therefore am a constituent of my hon. Friend the Member for Surrey, South-West (Mrs. Bottomley). She said that there is in our area a hospital of which the kitchen has won the highest award. As I am a former restaurant correspondent of a glossy magazine, she owes it to me to let me know which hospital has won this award.
I congratulate my hon. Friend the Member for Davyhulme (Mr. Churchill) on a reform long overdue. Its purpose is to restore to service men the rights of redress removed in the 1947 Act. I would not have believed that the sight of my hon. Friend in full sail would strike fear in the hearts of the just. It is only sensible that the Ministry of Defence, in advance, has decided to strike its colours. I understand that, save for the clause on retrospection, the Bill is acceptable to our great Government. That is a welcome example of the irresolute approach.
Police and firemen have long enjoyed access to the courts, where awards in recent years have become more generous. It is only just that service men and their wives should have the right to sue for negligence, except, of course, during military action.
Retrospection is a much more difficult matter. Sadly, I have come to the conclusion that we should set our face against it. It is estimated that the cost of this reform, were it to be implemented, would be £19 million a year by the mid 1990s. Money has been at the root of the defence of Crown immunity for years.
It has already been mentioned that my right hon. Friend the Secretary of State for Social Services was obliged, following a television programme, to concede that the restaurants and the food in hospitals should be subjected to the processes of law—
§ Mr. Porter
And the cockroaches.
§ Mr. Critchley
—and the cockroaches—in order that patients should be better fed.
The Crown still enjoys immunity against planning permission — it can develop without reference to planning permission. I wonder whether, in the fullness of time, that immunity will also be removed.
My hon. Friend the Member for Davyhulme must be congratulated on the reform that he is introducing for which he will be long remembered. I hope that his name will be attached to those reforms — "The Churchill Reforms of 1987". Perhaps my hon. Friend will now switch his attention to the whole problem of Crown immunity, and that will serve to keep him out of mischief in what is bound to be election year.
§ Mr. Harry Greenway (Ealing, North)
It is a great pleasure to follow my hon. Friend the Member for Aldershot (Mr. Critchley).
§ Mr. Ashley
That is one of the poorest speeches we have heard.
§ Mr. Greenway
I was just about to say how much pleasure my hon. Friend gave the House.
We owe a particular debt to my hon. Friend the Member for Davyhulme (Mr. Churchill) who has brought us together on this important issue. This Bill seeks to provide compensation to those who suffer injury through negligence. The terms of that sentence load one's mind strongly in favour of the basic principles of the Bill. It must be right. When the Bill becomes law it will remove many injustices.
I sympathise with my hon. Friend the Member for Norwich, South (Mr. Powley) who spoke of the enormous sums paid to lawyers, often resulting in the advice that one should do nothing. That is of essential importance in our consideration of the Bill. I note that my hon. Friend spoke of his great respect for lawyers. He admitted that that was a type of insurance to ensure that he would have their support, help and protection whenever he comes to need it. I hope he will never he in that position. I believe that he misjudges the legal profession as I am sure that its members are strong enough and professional enough to give straight help and advice without being "greased up". I am not sure if that is the right expression but I am sure my hon. Friend the Member for Aldershot would know about that sort of expression.
My hon. Friend the Member for Davyhulme drew attention to the important fact that £9 million or 47 per cent. of funds to be made available for the implementation of this Bill would go on providing about 52 lawyers for the Defence Department. They would be taken on at a cost of £32,000 each. That is worrying and I ask my hon. Friend the Minister to see whether there is an alternative.
A simple adjudication process might replace the litigation implicit in the Bill. That could be achieved by establishing a set of suitable criteria within which a claim could be heard before an adjudicator. Perhaps the Bill could be amended so that only lay people appear before a professionally qualified adjudicator to consider each case on its merits. Service men and women who bring forward a case should be able to do so simply, and receive help from the adjudicator if necessary, but strictly on the understanding that lawyers would not be involved on either side.
Simple judicial procedures involving complicated matters are used every day in schools, for example, about which I know a good deal. Headmasters and headmistresses hear complicated complaints about the behaviour of children and damage to children or their property every day from children, their parents or teachers. A point of view is put and considered by the head teacher who makes a decision on the basis of what is fair and just.
I wonder why a similar process could not be established by the Bill, thereby leaving lawyers out altogether. When lawyers are involved, so is vast expense. I do not understand why lawyers' fees are so high. There may be some reason for it. Perhaps my hon. Friend the Member for Wirral, South (Mr. Porter) will be able to enlighten us. It is expensive to employ a lawyer to do the simplest thing, such as write a letter. The legal aid service cost the nation £320 million last year. A reasonable number of people were assisted, but not a vast number.
596 We must move away from expensive legal processes to ones which provide equal justice but without the paraphernalia and expense. We would thus release £9 million for compensation — nearly double what would otherwise be available. I cannot believe that any feasible and cogent amendment to that effect should not be considered and proceeded with.
I urge my hon. Friend the Member for Davyliulrne, in conjunction with our hon. Friend the Minister, to see whether he can sweep away the proposed 52 lawyers and therefore the need for their special training. If he can accept that radical suggestion, which would make much more compensation available to people, many of whom suffer seriously, that would be welcome.
§ 12.5 pm
§ Mr. Barry Porter (Wirral, South)
I should like to be able to say that it is a great pleasure to take up the remarks of my hon. Friend the Member for Ealing, North (Mr. Greenway). Unfortunately, that is not the position. I shall come to his remarks about lawyers later in my speech.
It is a pleasure, however, to take up some of the remarks of my hon. Friend the Member for Aldershot (Mr. Critchley), who rightly said that the town that he represents is the home of the British Army. My hon. Friend did us the honour of not repeating everything that had been said prior to his intervention. He merely welcomed the Bill. I shall try to follow his example to some extent, but never having been employed by a glossy magazine I do not have the same delicacy of touch that he tries to adopt. When he has finished listening to the debate, I have no doubt that he will address his mind to the matters that occupy him so much, such as whether someone has three or four buttons on his cuffs or whether he wears suede shoes. He might be interested to know that there are three buttons on my cuffs and that I am wearing leather shoes.
I welcome the Bill but I have some reservations, though not of principle. The 1947 Parliament has been rather badly abused. It is important to remember the circumstances of the time. Britain was on a war footing and it had a huge amateur army. We are no longer on a war footing and we have a small and highly professional army. It can be said that in 1947 gratuities and pensions more or less compensated the individual for the "damages" that he forwent. At that time the Legal Aid Act 1948 had obviously not been passed — that was a measure for which I thank God—and people were not litigious. They did not sue for small injuries or for small damage to property. They do now and so the circumstances have changed very much.
Part of the argument that I have heard advanced this morning — I have put this to my hon. Friend the Member for Davyhulme, (M r. Churchill) and to the hon. Member for Kingston-upon-Hull, North, (Mr. McNamara)— is that gratuities or pensions should be upgraded for those who are injured in the armed forces for whatever reason. If they were upgraded, it would be unnecessary, as far as I can judge, for any negligence to be proved. I have not mentioned so far the right hon. Member for Stoke on Trent, South (Mr. Ashley), but he has made much of the running in the battle which I did not think the Ministry of Defence would concede. I congratulate the right hon. Gentleman as well as my hon. Friend the Member for Davyhulme, whose Bill I support wholeheartedly.
597 The armed forces are different from other areas of life in one respect that will create a field of law, whatever my hon. Friend the Member for Ealing, North thinks. I have in mind circumstances in which the forces are training for military action, which my hon. Friend the Member for Davyhulme has mentioned briefly. The issue to which a judge must address his mind in considering a matter of tort —a civil wrong—and whether there was negligence or not at the time is, in effect, "What would the man on the Clapham omnibus think?" That is the test of reasonableness. I beg leave to doubt whether the test of reasonableness of the man on the Clapham omnibus will be the same test as that of the man on the Crusader tank. I believe that there will be a long series of legal and factual arguments on what is reasonable in all the circumstances.
I have a suspicion, not quite akin to a fear, that there may be alterations in the system of realistic military training, which could reduce its value. Like doctors in America, and lawyers in this country, the military commander, at whatever level, would be looking over his shoulder and wondering whether the writ would be flying, rather than the bullet. I do not know whether that will happen, but I suspect that that could affect the high professionalism of our armed forces. That will have to be guarded against vigorously. I had hoped that the Bill would be amended to take account of realistic military training. Hon. Members who serve in Committee—I am not offering to do so—might take account of what I have said.
I should like to comment briefly on retrospection, which any lawyer dislikes. However, it has been pointed out quite clearly that Governments have used retrospection to overcome a little embarrassment—for example, fairly recently there was the little matter of local government finance. I never understood it, but apparently we used retrospection then, and no doubt it will be used again in the future.
The significant point that has been raised about retrospection relates to the radiation argument. We have yet to see the end and the result of that inquiry, but it seems, prima facie, if my hon. Friend the Member for Ealing, North will forgive that legal phrase, that there was at least negligence in the way in which those people were treated during the nuclear tests. It seems wrong not to give an undertaking that if that turns out to be the case the people who were at the forefront of those nuclear tests should be given some consideration.
However, that should not be done in the Bill because it is not possible to fit it in. I hope that in Committee the right hon. Member for Stoke-on-Trent, South will seek meetings and have discussions with the appropriate Ministers to see whether he can reach some accommodation, rather than mess up a reasonably good Bill. That deals with retrospection to my satisfaction.
Having recovered my temper, the only other point that I wish to make relates to cost. I have no idea how the Department have reached the figures in the financial memorandum. For all I know, they could have got them from the third question in "Trivial Pursuits-. There is no way of calculating the potential cost.
During my past 10 to 20 years as a jobbing solicitor in the north, at least a dozen people have come to see me —they were the sons and daughters of service personnel or the soldiers themselves—to see whether something 598 could be done about an injury that they had received. For either no cost or a minimal cost, they were told that there was nothing that they could do because section 10 would apply. I do not know how one could calculate how many such people there would be in the country. Therefore, the calculations in that part of the financial memorandum are misleading. I am sure that a reasonable stab has been made at them, but the figures could be a good deal less, or a good deal more. The one significant and determinable calculation relates to defence staff and the 52 additional staff in the Treasury Solicitor's department. I do not know whether they would all be necessary.
I take issue with my hon. Friend the Member for Ealing, North about his most naive and childish suggestion that there should be an arbitrator—whatever that might be — on the strict understanding that no lawyer would be involved. Earlier in my speech, I suggested that we are entering a new field of law. Is my hon. Friend suggesting that when the qualified arbitrator brings up a question of law the poor individual should be left to argue his point of law, for or against, without benefit of legal advice or access to somebody who knows what a tort is? I doubt whether my hon. Friend had the slightest idea what a tort was before I told him. He suggested that, because a headmaster or headmistress is capable of dealing with administrative matters in a school and with children, he or she is somehow qualified, if I understand him correctly, to deal with these complicated matters. That is completely ludicrous.
§ Mr. Greenway
Will my hon. Friend give way?
§ Mr. Porter
Yes, if my hon. Friend is not going to be silly.
§ Mr. Greenway
My hon. Friend was not paying attention to my remarks and I shall not enter into the spirit in which he is making his remarks. I simply suggested an alternative process which could be developed, in which lawyers could not be involved.
§ Mr. Porter
The whole purpose of the Bill it to put members of the armed services on an equal footing with others who have a right of action in the courts for negligence or some other tort. My hon. Friend is suggesting that we do not give them the same right of audience before a court of civil jurisdiction, either the High Court or the county court, according to the common law and statute law of England. He is suggesting that this is some sort of administrative matter and that once a precedent is established each case follows it. I am afraid that it is not as simple as that.
It would be purposeless to defend or attack the legal system, and in any event I sense that I am in a minority today. This hang-the-lawyers atmosphere which pervades the House too often and assumes that lawyers are on this earth to make a fortune at the expense of the general public to no good purpose is a calumny which I shall he willing to defend vigorously on another occasion.
If we want a proper legal system and these people brought into the common law of England, as we do, lawyers must advise and assist. I do not know, and I doubt whether the Department knows, what the cost of those lawyers should be, but at least those lawyers and their costs, most of which will be covered by legal aid, are subject to parliamentary scrutiny. Therefore, my hon. Friend's disquiet about the sums involved could perhaps 599 be dealt with again through discussions and arguments with the appropriate Ministers. That certainly is not part of the Bill.
I wish hon. Members who will serve on the Committee well. They will deal with a worthy Bill. Indeed, it may be called the Churchill reforms 1987 — I know not. Although I have minor legal reservations about it, I wish it well and I shall be present to vote for it on Third Reading.
§ The Parliamentary Under-Secretary of State for the Armed Forces (Mr. Roger Freeman)
I congratulate my hon. Friend the Member for Davyhulme (Mr. Churchill) on his good fortune in securing a place in the ballot and on selecting this Bill for consideration. I perhaps reflect the views of all hon. Members when I congratulate him and admire the clear, compassionate and compelling way in which he introduced it. It has achieved a broad measure of support on both sides of the House, although I note that some hon. Members have reserved their position on certain issues. If they are selected to serve on the Committee, they will doubtless pursue those issues with great vigour. I intend first to deal with the main issues encapsulated in the Bill and then to answer as many questions as I can from the Government's standpoint.
I am aware of the strength of feeling which section 10 generates both in Parliament and outside and I respect the sincerity of the views of those who have been pressing for change. I know that it is often wrong to single out individuals for tribute, but I wish to endorse the tribute already paid this morning to the right hon. Member for Stoke-on-Trent, South (Mr. Ashley). He has pursued his aim to repeal section 10 with great courtesy and determination and he has been supported outside the House by the Section Ten Abolition Group campaigners and others. I pay tribute to him for the way in which he has pursued his campaign.
We should not forget the service men and women who have been injured or have died, not just in the 40 years since the Crown Proceedings Act was passed, but over many years. It is all too easy to get involved in detailed discussion about the niceties of particular legislation and to forget the human tragedy and suffering of service men and women who have had to leave the services and, indeed, the suffering of their dependants. I know that that thought is shared by the right hon. Member for Stoke-on-Trent, South and, indeed, the whole House.
Section 10 the Crown Proceedings Act 1947 has been on the statute hook for 40 years. As hon. Members have recalled, the arguments that persuaded the Government of the day and both Houses of Parliament that it needed to be enacted were complex and relevant to the circumstances of the time. Equally, the arguments for change, which all hon. Members have advocated with vigour and sincerity over recent years, are well recognised. In October 1983, the Government set up an interdepartmental working group of officials from the Ministry of Defence and other Government Departments to review the operation and effects of section 10. The time taken to study carefully and objectively all the legal and administrative issues is a measure of how seriously we have approached the problem and how anxious we were to arrive at the right conclusion. That conclusion, welcomed by the hon. Member for Kingston upon Hull, North (Mr. McNamara) on behalf of the Opposition, was announced by my right hon. Friend 600 the Secretary of State for Defence on 8 December last, when he announced the Government's decision that it was right to repeal section 10.
The Government are happy to welcome and support the Bill introduced by my hon. Friend the Member for Davyhulme and I share the expectation that his name will be associated with the measure for many years to come. The Bill seeks to give members of the armed forces the right of access to the courts to sue for legal fault in cases of personal injury or illness attributable to their service —in other words, to put them on a par with their fellow citizens in peacetime.
It might he useful to reflect again upon the history of section 10. Before 1947, service men and women were unable to sue the Crown, but they were able to sue other service men and women. The 1947 Act not only prohibited service men from suing the Crown, as had always been the case, but precluded them from suing other service men and women. We are considering the total repeal of that prohibition so that service men will be able to sue other service men and the Crown — their employer, the Ministry of Defence. In 1947, Parliament took the view that service personnel would not be financially penalised by the provisions of section 10 because they received benefits, regardless of fault, which in most cases were comparable with those that a civilian might expect to obtain through the courts.
Our review of the operation of section 10 in recent years, however, has shown that damages awarded by the courts in some personal injury cases involving proven negligence have risen to a level which may considerably exceed the benefits that an injured service man would receive. Therefore, we have taken the view that the repeal of section 10, as proposed in the Bill, is the only satisfactory way to remove this disadvantage to members of the armed forces. The existing benefits to which injured service men or their dependants are entitled are paid on a no-fault basis and there is no intention to withdraw them. The repeal of section 10 will result in an additional option being open to those who consider that they have suffered as a result of others' negligence. It may be helpful if I briefly outline the present system of no-fault and automatic payments to service men, whether or not there is an act of negligence by another.
§ Mr. McNamara
Am I right in saying that it is not a matter of "either" or "or" but that this is additional?
§ Mr. Freeman
The hon. Gentleman is quite correct. I apologise if I gave the opposite impression. I repeat that by the repeal of section 10 the service man or service woman receives an additional right. Those who have to leave the services as a result of injury will receive, in any case—as they have always received and will continue always to receive—the automatic benefit payments that I shall briefly describe. In addition, service personnel will have the right, if they believe that an act of negligence has occurred, to sue other service personnel and the Crown.
§ Mr. Porter
So that the House will be under no misapprehension, will my hon. Friend confirm that if service men sue and are successful, the amount of pension and/or gratuity will be taken into account, either in whole or in part, in assessing the final sum to be paid in damages, so it is not an addition in the true sense of the word?
§ Mr. Freeman
My hon. Friend is right about abatement, but I think that he will find that if there is to 601 be abatement, it will be abatement by the Ministry of Defence and the Department of Health and Social Security of the annual pension payment to the successful plaintiff. There will be no abatement of the sum awarded by the courts. I repeat that if there is to be abatement, it will not be abatement of the initial lump sum payments by the Ministry of Defence or the Department of Health and Social Security. I shall pursue this point further and we will return to it in Committee, but I think that I am right in saying that if there is to be abatement it will be abatement of the ongoing payments.
I will outline to the House the automatic payments to service men when they are invalided out of the service, when the disability is due to service and when that disability is more than 20 per cent. The DHSS pays a tax-free war pension which is dependent on rank and disability but not on length of service. That regular payment is indexed. The Ministry of Defence pays a tax-free service pension which is dependent on rank and disability but not on length of service. There is guaranteed minimum total pension from both DHSS and MOD which is dependent on the degree of disability. Both the pensions paid by DHSS and MOD are indexed for inflation and both are tax free. In addition, the Ministry of Defence pays a tax free lump sum and a terminal grant. Those sums are paid at the outset. If the disability subsequently increases, the pension will be increased subsequently. Provision is also made for dependants, in the sad event of a service man dying as a result of his service.
In 1947, Parliament also accepted that it would not be appropriate for service personnel to be able to bring civil actions for negligence against one another because of the implications that this might have for discipline and training. I acknowledge that that was an understandable concern, but I believe that it is no longer relevant. I will explain briefly why.
During our review we carefully weighed the potential conflicts between the operational needs of the services and the rights of individual service men, and concluded that the balance of advantage lay in repeal. The Ministry of Defence will stand behind any service man who is sued by another service man for negligence in the execution of his duties. That will ensure that there is no adverse effect on service morale and discipline or on the quality of service training. However, if appropriate, our normal disciplinary proceedings will in any event proceed if another service man is guilty of an act of negligence. Although we shall stand behind him in a court case, he may still be subject to disciplinary proceedings by the service concerned. I think that I reflect the views of all members of the armed forces, who welcome the Bill because it provides considerable benefits and rights for individual service men without any attendant risk or disadvantage to the effective management of the services. I can confirm that in the past few months on visits to units in the United Kingdom and abroad I have gone to some lengths to satisfy myself and the Government that there will be no disadvantage to the rigours of training as a result of the introduction of the Bill.
My hon. Friend the Member for Norwich, South (Mr. Powley) raised the question of the effect of the repeal of section 10 on recruitment and also whether its existence in the past had been a bar on recruitment to the armed forces. There is no evidence that section 10 has had a harmful 602 effect on recruitment to the services. Conversely, I would not expect its repeal to have any material effect in the opposite direction. We are looking carefully at how to bring more clearly to the attention of young recruits their rights and responsibilities on other issues. Section 10 is no longer relevant, but on the issues of drug abuse, homosexuality and racial discrimination, for example, I accept that we have a responsibility to review constantly the way in which we inform recruits of their rights, responsibilities and obligations. We will continually strive to improve the way in which we communicate that to our new recruits.
My hon. Friends the Members for Harrow, West (Sir J. Page) and for Wirral, South (Mr. Porter) also raised the question of training. For example, how would the captain of a destroyer react if, dashing around in the North sea, he struck another vessel and a sailor was injured? I can only repeat once more that the key point is that the Ministry of Defence will stand behind the service man who is sued. Therefore, although the service man and the captain of the destroyer might become the subject of a board of inquiry, the NCO responsible for training exercises or training operations need not feel in any way inhibited about pursuing those training exercises as he will know that he will not be financially disadvantaged if a successful case is brought.
My hon. Friend the Member for Twickenham (Mr. Jessel), whom I congratulate on his ingenuity in introducing another subject into the debate, expressed concern for the wellbeing of service men at all times, and I share his concern. I also echo his congratulations and the praise that he distributed fairly and equitably among all the services and all service men. We take great care in talking to officers and to service men and service women of all ranks in the United Kingdom about any changes that we propose in conditions of service, and we have done so in this case.
The Bill seeks to retain the power to reactivate section 10 at a time of great national emergency or in the event of actual or impending hostilities. That is widely accepted by the House. Indeed, I have not heard any hon. Member advocate in the debate that section 10 should not be reimposed in time of war. It is not possible or desirable to draw hard and fast definitions of the circumstances in which the Government might seek to reimpose section 10, but the wording of clause 2 is satisfactory in this respect, making it clear from that the Secretary of State will need to consider it necessary or expedient to make an order to reactivate section 10 by reason of a great national emergency or imminent national danger or in the event of warlike operations or connected activities outside the United Kingdom. We are talking about a grave situation in Britain or elsewhere, and I draw the attention of the House to the fact that the wording of clause 2 to a large extent mirrors the wording of the provisions of the Reserve Forces Act 1980 dealing with the call-up of reserves. Although there is no intention to create a formal link between, say, mobilisation and the reimposition of section 10, hon. Members will recognise that that gives an indication of the gravity of the circumstances in which reimposition of section 10 would arise.
The issue of retrospection and of ex gratia payments for cases that arose before 8 December 1986 has been raised by most hon. Members, but my hon. Friend the Member for Davyhulme has acknowledged that the repeal of section 10 should not be made retrospective. It may help 603 if I repeat the reasons for that. They will be well known to the House and they have already been rehearsed this morning, although I appreciate that they may not be accepted by all hon. Members and that we shall doubtless return to the subject in greater detail in Committee.
With regard to legal retrospection, I draw a distinction between the suggestion by the right hon. Member for Stoke-on-Trent, South, who wants complete legal retrospection, and the modification suggested by other hon. Members who have proposed an ex gratia fund for people whose cases arose before 8 December and who deserve financial advantage. I shall deal first with legal retrospection. As my right hon. Friend the Secretary of State said on 8 December, there is a general principle that new legislation is for the future. Also, it would be wrong to impose retrospective liability on individual service men even if the Crown undertook to stand behind them.
The right hon. Member for Stoke-on-Trent, South said that if the Crown stands behind service men in future, by implication the Crown should stand behind service men who are sued retrospectively, so there would be no financial penalty or liability on them for acts committed in the past. With respect, that is not my point. My point is that it is wrong in principle to permit a service man injured in the past, before 8 December, to bring a law suit against another service man. That is the mechanics of how he would seek legal redress. He would have to bring a suit and name other service men. It would be wrong to impose that retrospective legal liability upon service men for acts committed in the past under a different legal regime.
§ Mr. Ashley
The Minister has acknowledged that the Ministry of Defence will pay for damages where negligence has been found. In the case of retrospection, I understand that a man found guilty of negligence will therefore suffer no personal penalty because that payment will be made. Perhaps the Minister's point is that the person concerned will suffer adverse publicity if he is found guilty of negligence. I ask the Minister to weigh that against the anguish of the disabled person who will get no redress. I do not want to go into detail now, and I recognise that we shall discuss this in Committee, but I should like the Minister to keep an open mind until we have discussed the matter in more detail in Committee.
§ Mr. Freeman
I am grateful to the right hon. Gentleman for reminding me and the House of the importance of this issue. I draw a distinction between the argument that he has made for full legal retrospection and the arguments advanced by other hon. Members for an ex gratia payment. With regard to full legal retrospection, I stand four square behind my argument that it is wrong to impose retrospectively a liability upon an individual, or individuals, for acts committed in the past, irrespective of who will pay the damages. That is a fundamental principle of our parliamentary democracy and of the rule of law.
Some hon. Members suggested that there should be an ex gratia fund to deal with cases that arose before 8 December. I can find no logical dividing point between the cases that they believe are deserving and all the other cases. We already know that there is no time limit. Indeed, there is no logical cut-off point in time as far back as one can go beyond which justifiable cases could not be brought to the attention of the Ministry of Defence. Considerable injustice would be done if some cases could be brought to the attention of the Ministry of Defence or the Crown and 604 argued coherently because witnesses and papers were available but others could not. In relation to the suggestion for an ex gratia fund, I am arguing that, sadly, there is no clear definition — certainly no one has advanced one—of the cases that could or should qualify for such treatment. However, we shall doubtless return to the matter in Committee when those who have been pressing the argument will do so again.
My hon. Friend the Member for Surrey, South-West (Mrs. Bottomley) and the hon. Member for Kingston upon Hull, North (Mr. McNamara) cited the example of the scheme operated by British Coal to assist victims of pneumoconiosis. I do not believe that that scheme is in any way relevant to the settlement of past section 10 cases. The British Coal scheme is very limited and covers just one specific disease to which coal miners are particularly prone. In such cases, the question of liability is not strictly relevant. Claims at present barred by section 10, however, arise over a vastly wider range of circumstances in which the issue of individual liability is highly relevant. I do not believe, therefore, that a scheme to compensate for the effects of an industrial disease can be compared with the rights of service men to sue for negligence. It is not a correct analogy or parallel.
We have made it clear that we shall operate special arrangements for claims which might result from incidents which occurred between the date when my right hon. Friend the Secretary of State announced our wish to repeal section 10 and the date of enactment of the new legislation. Assuming that they met the necessary criteria, such claims for compensation would be dealt with on an ex gratia basis. However, I should add that, while these claims will be considered during the interim period prior to enactment of the new legislation, settlement will be deferred until after enactment as it would be improper to anticipate or pre-empt Parliament's consideration of the Bill.
I want to consider two or three related issues that have been raised during the debate. First, I want to consider the sad case of Sapper Anderson raised by my hon. Friend the Member for Davyhulme. Both father and mother were given a summary of the board of inquiry report, as is normal practice. The coroner's inquest returned a verdict of accidental death. There was no evidence of negligence on the Army 's part and the coroner did not apportion any blame or criticism. None the less, I must tell the House that I have taken steps to change procedures and to reinforce safety procedures during diving selection testing and, specifically, I have instructed that the so-called "mud run" for those undergoing diver training, which I suspended immediately on the sad occurrence of this case, will not be introduced. I have also introduced several other changes. I will write to my hon. Friend the Member for Davyhulme and others who have expressed an interest in the case to explain the steps that I have taken.
The right hon. Member for Stoke-on-Trent, South and the hon. Member for Kingston upon Hull, North raised the question of the nuclear test veterans and I know that that issue concerns us and will doubtless concern us in future. Claims against the Ministry of Defence by nuclear test service men veterans will remain valid because they are related to incidents before the Government announced their intention to repeal section 10. In any case, the Government are confident that no one suffered as a result of exposure to ionising radiation from the United Kingdom nuclear tests, and no evidence has been produced to alter that view. However, as we are aware of 605 public concern about this matter and the concern expressed clearly this morning, we have commissioned, as the hon. Member for Kingston upon Hull, North knows, the National Radiological Protection Board to carry out an independent survey to ascertain whether there is a greater incidence of cancer-related deaths among participants in the tests than would otherwise be expected. The Government will review their position in the light of the NRPB's conclusions. I understand that the NRPB hopes to publish the results of its study later this year.
§ Mr. McNamara
Will the Minister tell us exactly what "later this year" means? There has been postponement after postponement in relation to that report, which was promised nearly two years ago.
§ Mr. Freeman
I understand the hon. Gentleman's concern. That anxiety is mirrored entirely by the Government's determination to have the report produced and considered as quickly as possible. I assure the hon. Gentleman that the time scale to which I have referred—"later this year"—will be adhered to. My ministerial colleagues and I are as anxious as the hon. Gentleman to see the results of the survey. However, it has taken some considerable time and I am sure that he will agree that it is correct that the results of the survey should be presented coherently and comprehensively and studied by the Government. However, I am sure that the House will return to that issue.
My hon. Friends the Members for Nuneaton (Mr. Stevens) and for Surrey, South-West (Mrs. Bottomley) asked about information given to next-of-kin in the event of injury or death. My Department provides detailed accounts of the circumstances of death to those next-ofkin who request them. Some, however, do not do so and we do not volunteer the information so as to avoid causing needless additional distress. I always examine cases carefully when hon. Members make representations to me and I always take particular care to ensure that the proper procedures are followed.
The hon. Member for Kingston upon Hull, North referred to claims for property damage and suggested that they will still be barred under the Bill. Section 10 covers only personal injury cases, illness or death but service men, like civilians, have been able to sue the Crown for damage to property since the 1947 Act was passed and they will continue to be able to do so. They can also make claims against the Ministry of Defence in accordance with service regulations. I hope that that sets the hon. Gentleman's mind at rest.
§ Mr. McNamara
I shall write to the hon. Gentleman about the case that I have in mind.
§ Mr. Freeman
I am grateful to the hon. Gentleman.
Finally, perhaps I might be permitted to make some observations on the costs and manpower implications of the proposals in the Bill. That matter was raised by my hon. Friend the Member for Davyhulme, by the hon. Member for Woolwich (Mr. Cartwright) and by my hon. Friends the Members for Nuneaton, for Wirral, South (Mr. Porter) and for Ealing, North (Mr. Greenway). As the explanatory and financial memorandum states, the key point is that it is difficult to make any reliable estimate of the cost of repeal because we cannot know what the level 606 and incidence of claims will be. I expect the overall cost to build up over a period of time, but the assumptions upon which our estimates are based are necessarily highly speculative because we have no claims experience in this area. However, I hope that the steady state costs identified in the memorandum represent the "worst case". I shall deal briefly with the suggestion by my hon. Friend the Member for Davyhulme, but I must tell my hon. Friend the Member for Ealing, North that I do not hold out much hope of pursuing his suggestion for an alternative approach through adjudication. It is central to proposals in the Bill that service men should have the right of access to the courts, which involves the legal process. That seems right and proper. I hope that we shall be able to consider in due course the option of contracting out to the commercial insurance market this area of the Ministry of Defence employer's liability, although we shall obviously have to establish several years claims experience before we can start to discuss with the market how that might be achieved.
With regard to the figures on costs in the final paragraph of the explanatory and financial memorandum. I draw the attention of the House to the estimate of £10.4 million per annum, which we forecast for the "worst case" scenario and which will be paid out in the steady state situation in about 10 years' time. The estimated cost of settlement is calculated on the basis of assumptions about the number, incidence and size of claims, taking into account the annual figures for service deaths and injuries and our experience of claims from our civilian employees. I emphasise that the estimates are necessarily speculative because we cannot forecast with precision the level and incidence of claims. Another complication is that many service men accept the hazards of service life as part and parcel of their job and might not pursue a claim through the courts. Indeed, one hopes and expects that the courts will take into account the hazardous nature of service life when awarding what they consider to be fair and just damages.
The £6.6 million per annum shown as the estimated steady state sum for legal and other costs in the Treasury Solicitor's department represents the payment of two sums. First, the £5 million per annum represents the payment of claimants' or their solicitors' legal costs and charges once a claim is settled. That is nothing to do with the Ministry of Defence but represents the legal charges and costs of the successful claimant. The further £1.6 million per annum is the cost of the Treasury Solicitor's department counsels' fees, agents' fees and other experts' fees and expenses. Similarly, the estimated cost of employing up to 15 additional Ministry of Defence staff and up to 52 Treasury Solicitor's staff is based upon salaries plus all the associated costs of employing people, such as employers' national insurance contributions, pension costs, accommodation and office services costs.
However, I acknowledge the concern expressed by several hon. Members about the number of staff that the Treasury Solicitor's department, in particular, proposes to employ. I am happy to give on behalf of the Government to hon. Members who expressed concern an undertaking that we shall study again the estimates made of the number of people to be employed. I shall return to this issue either in Committee or in direct response to the hon. Gentleman who raised it and I undertake to look again at those assumptions.
607 With regard to the concern expressed by my hon. Friend the Member for Davyhulme and by the hon. Member for Woolwich, my hon. Friend the Member for Davyhulme suggested that available savings by reducing the number of lawyers and staff, particularly in the Treasury Solicitor's department, might be recycled and used to settle cases more speedily and perhaps more generously. The hon. Member for Woolwich argued that if economies could be made in the numbers of staff employed, settlements might be more generous and potential claimants might be bolder in their determination to pursue claims.
§ Mr. Cartwright
I suggested a rather simpler point. The proportion of the available funds that will go towards compensation and the proportion that will go towards the legal staff and administration suggest that a great deal of attention will be given to disputing and defending claims. It was that relationship which concerned me.
§ Mr. Freeman
I give the hon. Gentleman and my hon. Friend the Member for Davyhulme two assurances on this point, in addition to the one that I have already given about the number of staff that the Treasury Solicitor's department will employ. First, claims submitted by service men through their legal advisers will be pursued diligently and quickly. We shall not attempt to stifle or delay any legitimate claims. Secondly, we shall, where necessary, pursue out-of-court settlements. We shall have no desire to take cases through the courts. If an out-of-court settlement can be reached, it is in the interests of everyone that that should he done.
The change in the law which the Bill seeks to bring about will be welcomed by the House as a remedy to a situation which keeps our service men and service women, in peacetime, at a disadvantage when compared with their fellow citizens. The careful and objective review that the Government have had carried out into the workings of section 10 of the Crown Proceedings Act 1947 has highlighted anomalies which must be tackled. Credit is due to the Government, who have grasped the problems involved and have concluded that repeal of section 10 is the only satisfactory way of overcoming them. The measures sought by the Bill are good for the armed forces as a whole and will be welcomed by them and by the country at large. I recommend to the House that we give the Bill a Second Reading.
§ Mr. Churchill
With the leave of the House, I shall respond briefly to a few of the points that have been made. My hon. Friend the Under-Secretary has dealt comprehensively with what has been said so far. I thank him for his various undertakings, which the House, and I in particular, appreciate. I am delighted to learn that the form of training that led to the death of Sapper Anderson was immediately discontinued and that it is not intended to reintroduce it.
Above all, I am grateful for the various undertakings that the Government are willing to look again at some form of enhanced compensation for former victims of section 10, if I understood my hon. Friend correctly. I am glad that the Government will consider pursuing settlements out of court in future claims of negligence by making generous compensation, rather than by resisting 608 by means of what the hon. Member for Kingston upon Hull, North (Mr. McNamara) described as a Ministry of Defence fund.
§ Mr. Freeman
For the sake of clarity, I emphasise that I gave no undertaking that we would look at the feasibility of introducing an ex gratia scheme for service men who were injured, possibly through acts of negligence, before 8 December. I said that no persuasive argument had been made this morning for defining the category or group of individuals who should be so treated.
§ Mr. Churchill
I am sorry that I misunderstood my hon. Friend. None the less, I am grateful for what he said about future provision and the way that that is to be handled, and for his undertaking that the large numbers of additional staff proposed to be taken on in the Treasury Solicitor's Department will be reconsidered.
It is clear that the key issue bothering hon. Members on both sides of the House is retrospection, and rightly so. The right hon. Member for Stoke-on-Trent, South (Mr. Ashley) made a moving contribution and was clearly speaking from the heart. While he recognised some of the difficulties associated with retrospection, he believed that it must be our task to find a way around these difficulties. I agree with his purpose in seeking to secure better provision for what we might call the section 10 victims. He mistakes me if he believes that I am opposed to making such provision.
It would not be right or realistic to make individuals retrospectively liable in law, even with the Crown standing behind them, for actions of negligence, or alleged negligence, for which they may be responsible for many years. That is not to say that retrospective provision should not be made for the section 10 victims. I believe that it must be made. The Ministry of Defence, having acknowledged the injustice perpetrated by section 10, now has an obligation to do more for the section 10 victims on an ex gratia basis. I hope that in Committee my hon . Friend the Under-Secretary and the Government will consider this.
As my hon. Friend the Member for Surrey, South-West (Mrs. Bottomley) suggested, something could be done along the lines of the compensation scheme for victims of pneumoconiosis set out in the Coal Industry Act 1975. That Act made up to £100 million available from Government funds to support the victims of pneumoconiosis. A gesture on those lines at an appropriate figure would not go amiss.
The right hon. Member for Stoke-on-Trent, South spoke about the nuclear victims. It is an appalling fact that 20,000 British service men were involved in the British nuclear tests in Australia and the Pacific in the 1950s and 1960s, and undoubtedly large numbers were exposed to radiation. Indeed, the right hon. Gentleman quoted part of a classified Ministry of Defence document of 1953 that appears to suggest that some service men were deliberately to be used as human guinea pigs to establish the effects of radiation on human beings. If that is true, it was a most terrible thing for any British Government to have done. It defies belief especially when those tests took place so many years after the Hiroshima and Nagasaki bombs had been dropped with the horrendous consequences for those populations.
We have all seen the newsreel footage of some of those tests and have seen service men standing above ground 609 with no protective clothing. They were ordered to turn away from the flash. At that blinding flash there was a massive discharge of gamma radiation and this was followed by the mushroom cloud billowing up.
Successive Governments have refused to acknowledge that anyone involved in those tests suffered adverse health or premature death as a result of that exposure. However, the Government have slipped up and that is made clear in the excellent brief provided by Dr. Poole of the Library regarding the case of ex-Royal Marine George Pollard who died in 1978. That brief states:The operation of section 10 is typical of the labyrinthine complexity of Whitehall's bureaucracy, which effectively prevents compensation. Today if a service man, or his widow, declares an intention to sue the Government for damages, a 'Certificate of Attributability' is issued automatically by the Ministry responsible for claims, the Department of Health and Social Security, under section 10. This certificate admits that the condition suffered could be considered due to service but blocks any action in the Courts. The irony of the position is shown by the certificate issued in 1980 to a widow of an ex-serviceman who worked on a nuclear test site which, in order to avoid an action for damages, declares that the serviceman's death resulted from service on Christmas Island. Yet the Government's Official policy is to deny that any of the servicemen suffered because of those tests.I am delighted that the Nuclear Radiological Protection Board is undertaking a detailed inquiry into this matter.
I cannot stress too strongly the urgency of that, for many have already died and many more are critically ill. I think that most of us in this House strongly suspect that there is a link between the service men's sufferings and the unwarranted exposure to which they were subjected during the nuclear testing. I believe that those service men are entitled to justice just as future generations are being provided for in the scope of this legislation.
I am the first to acknowledge that that compensation cannot be provided for in this Bill. But I trust that the Government will ensure that the right thing is done for those who serve their country so loyally and who have suffered in consequence.
§ Question put and agreed to.
§ Bill accordingly read a Second time, and committed to a Standing Committee. pursuant to Standing Order No. 61 (Committal of Bills.)