HC Deb 03 June 1991 vol 192 cc129-36

Motion made, and Question proposed, That this House do now adjourn.—[Mr. Nicholas Baker.]

10.47 pm
Mr. David Winnick (Walsall, North)

I wish tonight to raise the case of a constituent of mine, Sean Povey, who, with two other Grenadier guardsmen, lost his legs during a training exercise in Canada. The tragic accident happened on 7 July 1989 while the soldiers were digging a trench as part of a training exercise. A buried shell exploded and all three—Sean Povey, Adrian Hicks and John Ray—had to have their legs amputated. They also suffered other injuries.

That is the background to the debate that I have initiated tonight. My constituent, Sean Povey, was only 19 at the time, and the others were also young. I understand that one of them—not my constituent—has already been discharged from the Army. All three received lengthy hospital treatment, and Sean remains in a military hospital for most of the time. In all, he has undergone five operations and he may have to undergo another in the near future. At 19, this young lad lost his legs while carrying out instructions in a training exercise. Clearly—and I hope that the Minister will confirm this—no blame can be attached to him or to the other two.

The Minister of State for the Armed Forces (Mr. Archie Hamilton)

indicated assent.

Mr. Winnick

I see the Minister nodding. They are entirely innocent of what occurred in the training exercise in Canada in July 1989.

The debate arises because of the Ministry of Defence's continuing refusal to pay compensation to the three soldiers. That refusal is on the basis that what occurred was not the fault of the Ministry. The Minister has confirmed—and he will no doubt do so again later—that no blame attaches to the three soldiers. However, it has also been said that no blame attaches to the Ministry. There is therefore to be no compensation.

However, the soldiers and their families were initially told, after the accident, that compensation would be paid. I was told in a reply that I received from the Under-Secretary of State for the Armed Forces in the other place that, having received the advice of the Treasury Solicitor and counsel that the Ministry was not legally responsible for the injuries, it was decided not to pay any compensation. It seems that the Ministry is hiding behind a legal briefing. It has been told that it has no legal responsibility, and Ministers have decided simply to accept that decision. I find that totally unsatisfactory, as do many other Conservative and Opposition Members. More than 200 hon. Members have signed an early-day motion tabled by the hon. Member for Winchester (Mr. Browne) which calls for the Government to pay generous compensation and calls for the return of the accumulated legal costs to the three guardsmen.

The regiment has done its best, but the decision lies with the Ministry which, so far, has refused to relent in the case. Representations by solicitors have been made on behalf of the three soldiers. Hon. Members, including myself, have written, but the response has been totally negative in terms of compensation. There has been no willingness by the Ministry for the board of inquiry into the case to be reopened. I believe that there is a case for that to be done, and I shall be interested to hear the Minister's response.

The Minister will no doubt refer tonight to the fact that, if my constituent, Sean Povey, is duly discharged from the Army, a service pension will be paid to him. That is right. But a pension cannot be a substitute for extra compensation after losing both legs at the age of 19, when no fault lies with him or with the other two soldiers.

I do not know whether the Minister is aware that the Member of Parliament of one of the soldiers, the Under-Secretary of State for Defence Procurement, is sitting beside him. The hon. Member for Bristol, East (Mr. Sayeed) has asked me whether he can intervene, and I hope that he will be able to do so shortly. They know, as I do, that all three men are bitterly disappointed by the attitude of the Ministry of Defence. Who can blame them?

It will not be easy for the three men in civilian life. The only job that they have known has been the Army. They joined the Army straight after school. Although without legs and crippled for life, they will seek work in a highly competitive marketplace. Even if we were not in such a serious recession, they would be up against competition from others who may have learnt a trade after leaving school. All the experience of the three men has been in the Army. Have they not suffered enough already without being put through additional mental stress and difficulties if the case has to go to court?

I received a letter from a teacher at a school in my constituency, part of which I should like to quote. The teacher writes: I have known Sean for a number of years in my capacity as a subject teacher and Head of Sixth Form at St. Thomas More School in Willenhall. For several years Sean had made it plain that the only career he wished to follow was in the army. When he was accepted for training"— I hope that the Minister is listening— Sean was absolutely delighted and I remember how proud he was when he visited the school in his uniform after passing out. It seems a great tragedy to me when a young man whose only desire in life was to defend his country is now being so shabbily treated by the Ministry of Defence. I do not expect that the Minister will relent tonight. The Minister has his brief—I do not wish to personalise the point—and he will explain, unfortunately, that the Ministry has not changed its view. He will be full of sympathy. Indeed, the letter that I received was full of sympathy for the three young men, and I do not question that. He will refer to the pension that will be paid through the Department of Social Security if the soldiers are discharged, as I am sure that the other two soldiers will be, because of their serious injuries.

This case will not go away. This Adjournment debate is part of a continuing campaign for justice to be done to the three soldiers. I was told in the reply that I received from the Minstry of Defence that it did not intend that my constituent or the other two soldiers would be abandoned. But Sean Povey, Adrian Hicks and John Ray feel, to a large extent, that they have been abandoned by the Ministry of Defence. I know that the Royal British Legion has written to several hon. Members urging them to support the campaign for compensation to be paid.

Mr. John Browne (Winchester)

Will the hon. Gentleman give way?

Mr. Winnick

If I can conclude, the hon. Gentleman may have time to make his remarks.

A construction worker who lost both legs in the channel tunnel work, also in July 1989, took his case to court and was awarded in the High Court £370,173 agreed damages. That accident took place in the same month and the same year. That person, who was aged 40, also lost both legs. I ask the Minister and the Secretary of State to realise how essential it is that the three soldiers, who lost their legs through no fault of their own and have been crippled for life, should receive justice. If sufficient hon. Members on both sides of the House are determined that justice should be done, in the end it will be done; but I hope that it will be done in the very near future.

Several Hon. Members

rose—

Mr. Deputy Speaker (Sir Paul Dean)

Order. Do I understand that the hon. Members who are rising have the agreement of both the hon. Member for Walsall, North (Mr. Winnick) and the Minister? I see that they have.

10.56 pm
Mr. Jonathan Sayeed

I am grateful to the hon. Member for Walsall, North (Mr. Winnick) and to the Minister of State for the Armed Forces, my hon. Friend the Member for Epsom and Ewell (Mr. Hamilton), for allowing me to speak in the debate. I congratulate the hon. Member for Walsall, North on initiating it. As they both know, Lance Corporal John Ray is one of my constituents. This poor young man had both his legs blown off in the accident in Canada.

What makes me particularly angry about what happened is that I believe that John Ray, Guardsman Hicks and Guardsman Povey are being impeded in their search for justice by what I can only call secrecy within the Ministry of Defence. I understand, as any sensible person understands, that there is a necessity in the MOD for keeping most things, or at least many things, secret. But there are certain matters into which secrecy should not intrude. In certain matters, honesty, common sense and compassion should rule the day. This matter is undoubtedly one of them.

In these few moments, I seek certain undertakings. The first is that the full memorandum of understanding between the Canadian and United Kingdom Governments and any amendments that have been made since 1979 are released to the legal representatives of the three guardsmen. Secondly, the full board of inquiry report should be released, possibly without restricted details such as the composition and technical details of a 76 mm Hesch round. Thirdly, the range orders that existed in 1984–85 when the blind was supposedly fired, plus the range orders in existence on 7 July 1989 when the three young men were so severely injured, should be given to the legal representatives who have a duty and a right properly to represent our constituents.

I ask my hon. Friend the Minister to answer some questions. First, were the young men properly warned of the dangers of buried unexploded munitions? If not, why not? If they were, what precautions were taken, and why did they not work? Does it make any difference to the legal case whether the 76 mm Hesch blind was fired from a Canadian gun or a British one?

There is no doubt about the fact that the careers and lives of those three young men have been blighted. In industrial accidents of a similar nature, prompt and effective compensation is paid. We know that military training is often hazardous, and undertandably so, but while maintaining the efficacy of military training it is also the duty of those in authority to ensure that they reduce such hazards to the minimum. When that duty fails, there is also a duty on those in authority to look after those who are, unhappily, so damagingly injured.

I am by no means satisfied that the Ministry of Defence is doing its duty by those who decided to serve us by doing theirs.

11 pm

Mr. John Browne (Winchester)

I thank the hon. Member for Walsall, North (Mr. Winnick) for giving me the opportunity to speak. I also congratulate the hon. Gentleman on winning the ballot and instigating this important debate.

My hon. Friend the Member for Bristol, East (Mr. Sayeed) asked several questions to which I shall be very interested to hear the answers. I believe that it will be difficult for the Minister to answer those questions, because the board of inquiry was totally inadequate: it failed to give those guardsmen any chance of proving negligence on behalf of the British Government under the Crown Proceedings (Armed Forces) Act 1987. Basically, it made no attempt to look at the causes of the accident. The board looked at how to stop such an accident in the future rather than at the cause. Those guardsmen must prove negligence in terms of that accident. To do so they must have access to information.

Why was the blind shell uncleared? What were the contractual arrangments between the United Kingdom Government and the Canadian Government? What were the range orders at the time? Most important, what was the briefing given to those guardsmen when they were ordered into the impact area of a live firing range to dig trenches? Surely important briefings were given to those guardsmen at that time. If they were not given a proper briefing, that is the type of thing that would amount to negligence. Proof of negligence is the only chance open to those guardsmen to receive anything other than a mere pittance, for the sum given is a pittance relative to payments for a similar injury suffered in the private sector. The hon. Member for Walsall, North was correct to mention the compensation of £300,000 that was given for a commensurate civilian injury.

The board of inquiry must be reopened in the interests of giving an opportunity of justice to the three guardsmen. As has been said, they were doing nothing except their duty, as commanded by Her Majesty's Government.

I ask my hon. Friend the Minister to agree to recommend to the Government that the board of inquiry be reopened forthwith.

11.3 pm

The Minister of State for the Armed Forces (Mr. Archie Hamilton)

I congratulate the hon. Member for Walsall, North (Mr. Winnick) on obtaining the Adjournment debate. He has raised a moving and tragic case that has received much publicity outside the House and has attracted the interest of many hon. Members.

Guardsman Povey was involved in an appalling accident, and it is deeply saddening that his career—and that of the other two soldiers involved in the incident— should have been curtailed so tragically. I am very grateful to have been given the opportunity to explain to the House the background which gave rise to this incident, together with the benefits available and the circumstances in which other compensation payments may be made. It will be clear to the House that there is no intention of abandoning this soldier—or, indeed, any other service man injured in the line of duty, whether as a result of armed conflict or not.

May I express my personal gratitude to the Royal British Legion and the British Limbless Ex-servicemen's Association for their role in supporting those men, and pay tribute to the men themselves for the magnificent way in which they are coming to terms with their disabilities. All three were offered a skiing holiday in Germany last year by BLESMA, and two were able to go. I also understand that, depending on his resettlement plans, Guardsman Povey is to attend a course in Scotland later this year, encompassing sailing, riding and shooting. Furthermore, earlier this year, the British Legion look the men to the Sunshine Games for the disabled in Florida, where I believe they performed very creditably. All that demonstrates the greatest determination and courage on the part of those men.

The House will wish to know that Guardsman Povey remains in service, still receiving medical care, and, that therefore no decisions have yet been taken on when he will be medically discharged. That decision will be taken only when his treatment has been completed. Lance Corporal Ray is to be discharged later this year, and, as many hon. Members will know, Mr. Hicks was discharged at the end of last year.

As we have heard, Guardsman Povey was injured in an accident in July 1989, during a training exercise at the Suffield training area in Canada. He was engaged—together with the other two soldiers—in digging a trench for a Milan anti-tank weapons system. Having removed the turf, they went on to remove the topsoil below in preparation for a mechanical digger, when one of them struck a buried munition which exploded. Medical assistance was called for immediately, and all three soldiers were taken to Medicine Hat hospital. The munition was subsequently identified as having been fired on the Suffield training area some time in 1984–85. A board of inquiry was held into the accident and a summary—including the conclusion—has been released to one firm of solicitors, and would be released on request to any other firm, representing the three men.

I should say to my hon. Friend the Member for Winchester (Mr. Browne) that it is not normal Ministry of Defence practice to issue the whole report of a board of inquiry, because that would affect the evidence given to that board of inquiry. However, I am convinced that the summary contains all the component parts of the report.

Mr. Sayeed

I have read the summary, which uses the term "adequately briefed". That is the crux of the problem. What does "adequately briefed" mean? Until the guardsmen and their legal representatives know, they will not know whether they have a case for compensation.

Mr. Hamilton

I am not sure that the full report would spell out the meaning of "adequately briefed". I should have thought that the report covered the whole question of the guardsmen's briefing, but I do not know whether it is possible to add to it.

Mr. Winnick

The soldiers were not responsible?

Mr. Hamilton

Investigations concluded that the fuse on the munition had not functioned when it was fired, so that a so-called "blind" was left buried approximately 8–10 in below the ground. As the round had been in the ground for up to five years, its detonator could have become very sensitive.

I must emphasise that there is no question of any of the soldiers being at fault or, indeed—I shall come back to this point—of blame attaching to anyone. The incident was thoroughly investigated and the conclusion reached by the inquiry was that it was a tragic accident for which no one could be blamed. No one could be reasonably expected to know that there was a buried munition at the spot where the trench was being dug. There is a well established procedure for reporting and disposing of these "blinds" by range safety and ammunition technical staff. The procedure is comprehensive and is assiduously applied, but we must recognise that, however comprehensive the safety procedure, there may be isolated instances, as in this case, where the munition was buried and its existence unknown to exercising troops and safety staff.

On the question of compensation, I can confirm that claims have been made on behalf of all three soldiers by two leading firms of solicitors. It may be helpful at this stage if I gave some background to claims against Government Departments.

The House will recollect very well the lengthy debates that arose out of the decision in 1986 to repeal section 10 of the Crown Proceedings Act. This had the effect, from the date of the repeal, of putting service personnel in exactly the same position as all other groups of employees as regards their legal right to seek compensation from their employers for injuries received in the course of their work. That is exactly the position that Guardsman Povey and the other two soldiers are now in. They have the right to take proceedings against the Ministry of Defence.

Let me clarify why it is that the Ministry of Defence should deal with these claims even though the accident took place in Canada on Canadian Government property—this answers one of the points raised by my hon. Friend the Member for Bristol, East (Mr. Sayeed). As part of the agreement with the Canadians for the use of the Suffield range by the British Army, the MOD has agreed to indemnify the Canadians against all claims for compensation, actions and suits made as a result of British use of the range. That is the usual practice for forces operating on foreign soil. Much has been made, in the press and elsewhere, of the ownership of the particular munition involved—ownership is irrelevant. If there had been any negligence or fault established in this incident, the MOD would have accepted liability on behalf of those responsible.

I have to say clearly that, if there was any degree of fault or negligence on the part of the Ministry, or anyone acting on its behalf, liability would not be in question. If it had been considered that, on the balance of probabilities, a court of law would have found negligence, we would have sought the advice of our lawyers on how much the court would have awarded in damages, and that sum would have been offered to the service men.

My hon. Friend the Member for Bristol, East raised the issue of the release of the memorandum of understanding. As far as I know, there is no such memorandum. I suspect that there is an exchange of letters that covers the point about indemnifying the Canadians against claims for compensation. My hon. Friend also asked whether the range orders could be released, and I can assure him that that can be done. I shall organise that.

I acknowledge that, in cases such as Guardsman Povey's, there can be an instinctive reaction to ignore the legal issues and say that the case is so deserving of compassion that we should pay compensation irrespective of our liability. But how could we distinguish the case from previous ones, or perhaps others to come, without creating anomalies and injustices? A line has to be drawn, and the fairest way is on the basis of our legal liability. Decisions on other grounds could only be a matter for arbitrary judgment.

Mr. John Browne

My hon. Friend is talking about the legal liabilities of the British Government. Is he absolutely satisfied that the exchange of letters and the full briefings given to the guardsmen have been released to their solicitors, so that their legal representatives stand a chance of proving negligence on behalf of Her Majesty's Government? Without that chance, the guardsmen will not receive any compensation under present legislation.

Mr. Hamilton

As I said, the issue of the briefings given to the soldiers was covered under the summary of the report and the inquiry. From then on, it is a question of legal judgment as to whether negligence can be proved against the Ministry of Defence. The advice that I am being given is that that cannot be done.

As I have said, the accident was thoroughly investigated, and it has been concluded that no improvement in procedures could have guaranteed that this tragic accident would not have happened. However, that is not the end of the matter. Lest there be any doubt about this, let me assure the House that Guardsman Povey will remain a member of the armed forces on full pay until he is medically fit to be discharged, and before he is discharged he will receive a full programme of resettlement advice and counselling interviews.

However, there remains the question of what benefits and awards are available to soldiers, such as Guardsman Povey, injured in the line of duty, but where no fault attaches to the MOD or anyone for whom it is responsible. May I first of all remind the House of the provision which is made through established pension schemes, particularly for service personnel who are medically discharged on account of injury or ill health which is attributable to their service. As hon. Members are, I am quite sure, aware, there are two such schemes. One is the war pension scheme, which is administered by my right hon. Friend the Secretary of State for Social Services and about which I shall say something shortly. The other is the armed forces' own occupational pension scheme, which is administered by the Ministry of Defence.

The armed forces scheme provides a pension, and a lump sum, for any service man who is invalided, regardless of whether the cause is attributable to service or not, as long as he has given at least two years qualifying service. But where the cause is attributable to service—there is no doubt of this in the circumstances of the incident being debated—the benefits are significantly greater, and there is no minimum qualifying period of service. In practice, the trigger for converting to an attributable pension is the award of a war pension by the DSS. I shall return to this in a moment.

Benefits of the armed forces scheme include an additional lump sum, and a pension which is assessed according to the degree of disability. Where the degree of disability is assessed at 100 per cent. the guaranteed minimum pension is calculated to provide an income, when taken together with the standard rate of war disability pension paid by the Department of Social Security, which is about two thirds of the military salary appropriate to the man's rank.

The war pension scheme, administered, as I said earlier, by the Department of Social Security, provides tax-free benefits for people injured or disabled as a result of service in the armed forces. It also provides pensions for the widow or other dependants of someone who dies as a result of service.

Let me give an example of what these benefits and pension awards could mean to a young soldier—a private—with something like three years' service and earning a base salary of about £8,700, and invalided from the service. First, his normal service invaliding pension would amount to a little less than £500 a year and his tax-free terminal grant would be a little less than £1,500. The Department of Social Security would then assess his degree of disability. At 100 per cent., a war pension would be £84.90 a week. In addition, the further pensions payable would amount to £7,200 a year tax-free, index-linked to take account of inflation, and payable for life.

Mr. John Browne

Will my hon. Friend give way?

Mr. Hamilton

No, I am about to finish.

He would also receive tax-free lump sum payment of about £6,500. The capitalised sum necessary to fund this range of pension awards and benefits has been actuarially assessed as in the order of £150,000. Also, these figures should be compared not to cases where compensation has been paid as a result of negligence, but to the kind of provision an employer might make for his employees injured in the course of their work where no element of negligence is involved.

Moreover, these benefits do not represent the entire picture. An ex-service man, even though awarded a 100 per cent. disability pension, may be able to find employment as the hon. Member for Walsall, North acknowledged. Any earnings he receives would of course be in addition to his combined pensions and subject to the usual tax allowances. On the other hand, if his disability made him unemployable, he would be entitled to receive additional payments under the war pension scheme, such as unemployability supplement and invalidity allowance.

The motion having been made after Ten o'clock, and the debate having continued for half an hour, MR. DEPUTY SPEAKER adjourned the House without Question put, pursuant to the Standing Order.

Adjourned at seventeen minutes past Eleven o'clock.