HC Deb 31 January 1992 vol 202 cc1267-74

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

2.43 pm
Mr. John Browne (Winchester)

May I thank you, Mr. Deputy Speaker, for selecting this debate?

Ours is a warrior nation and, because of that, the men and women of our armed forces hold a very special place in our hearts—at least in times of war. Sadly, however, in times of peace we are sometimes apt, as in Kipling's famous poem, "Tommy", to take them for granted. Because we truly are a warrior nation, right hon. and hon. Members—probably all of us—yearly on the vigil of Remembrance Sunday, echo those time-honoured words, "We will remember them." It is true that we will remember them. But what about those who are not killed—at least not quite? I refer to those who suffer horrific wounds, but who are saved from death by the miracle of modern science, good luck and their own outstanding mental fortitude. Many of them live on, but they are severely disabled. Do we truly remember them? I think that the honest answer is yes officially, but do we remember them well enough? I believe that we do not.

Regardless of political party, the people of our country feel that the Government should take more, much more, care of injured service personnel. In relation to the armed forces the Government should, above all, be seen as the very model of a good employer. I believe that the armed services are good employers. The Royal Navy, since the time of Nelson, has been ahead of most navies in the world, if not all. The same applies to the Army since the time of Wellington.

However, when an injured service man falls into political hands, I do not believe that we look so good. Too often, there are long and undue delays in receiving compensation and a woeful lack of information is given to the injured and their families. There is an apparent unwillingness to honour moral and financial obligations. On 8 December 1986, the Secretary of State for Defence said: members of the Armed Forces, by their very nature of their profession, undertake tasks which ordinary members of the public do not." —[Official Report, 8 December 1986; Vol. 107, c. 85.] I believe that that is a correct and telling statement which should be writ large on the walls of the offices of my right hon. Friends the Minister of State for the Armed Forces and the Chancellor of the Exchequer.

On 8 December 1986, the Secretary of State went on to invite the repeal of section 10 of the Crown Proceedings Act 1947. His lead was followed by my hon. Friend the Member for Davyhulme (Mr. Churchill), who introduced the Crown Proceedings (Armed Forces) Act 1987. It was an excellent Bill and I supported it. It allowed armed services personnel, for the first time, to be able to sue the Crown for negligence. However, with the passage of time, certain glaring loopholes have appeared in the Act. I mean no criticism, because the loopholes were not foreseen at the time. The Act was well intentioned and the loopholes have since appeared.

First, the Ministry of Defence was allowed to withhold documents on the ground of secrecy. I believe that that privilege has been abused on a number of occasions. Secondly, it abolished the flexibility previously given to the Secretary of State to make ex-gratia payments. I believe that that flexibility is a vital element of the humane treatment of those injured personnel of the armed forces, especially as, rightly, the Act could not be used retrospectively. I also believe that the Act has left the onus of proof to fall always on the injured service person. That is a heavy onus which could be lifted in some obvious severe cases. If one imagines having both legs blown off and one's body lacerated and, in order to obtain full compensation, being forced to take on the might of the Ministry of Defence in a law suit it soon becomes obvious that such loopholes should be plugged.

In Committee, the then Under-Secretary, for whom I have the highest personal respect, set out the three Government principles for settling cases. He stated that the Government wished to settle out of court in the interests of the plaintiff. He continued: we are not seeking to set up legal barriers by employing a raft of lawyers to deter genuine plaintiffs …we shall proceed diligently and quickly to reach settlements. We shall not seek to protract cases." —[Official Report, Standing Committee C, 18 March 1987; c. 22.] He also mentioned the most interesting fact that the civil service estimate of the financial cost of the Act was £13 million a year after 10 years. It is now five years since the Act came into force and the total cost of claims is only £1 million a year. Yet the still deformed bodies of some of our injured service men are living examples of the injustice of under-compensation. The figures speak for themselves and confirm that there is under-compensation. I come to the case of the three injured Grenadiers, Lance-Corporal John Ray and Guardsmen Adrian Hicks and Shaun Povey of the Grenadier Guards. I do so not to rehash the case—because I believe that there has been a just settlement—but because it is so well-known. Sadly, however, in its settlement, it is still a rare exception. It is also illustrative of the problems.

In the summer of 1989, those three Grenadiers were ordered to prepare a trench on the Batus firing range in Canada. While digging, one of them struck a buried unexploded anti-tank shell fired some years before but then concealed in the ground. The shell exploded, blowing both legs off each of the three Grenadiers. The explosion injured their bodies so badly that despite prompt and efficient casualty evacuation action, it took the best of medical science about two years to nurse them back to sufficient health even to be invalided out of the armed forces.

A board of inquiry was convened. While it concluded that none of the Grenadiers was to blame, it was not even required to investigate either why the blind shell was in an area used for trench digging or whether all safety precautions and briefings had been carried out effectively. Despite that, the House was assured, incredibly, that no blame was attributable. Perhaps that was legal advice, and I do not blame the Minister personally. That is illustrative of the problems that such injured people face —the need to get the facts through and have them heard openly, rather than everything happening behind closed doors.

About 18 months later, when the first Grenadier, Adrian Hicks, was invalided from the Army, the Government appeared to dig in their heels at the very thought of paying compensation, or at any rate compensation anything near the levels paid in civilian life. When Hicks was discharged on 30 December 1990, he was not paid anything other than his unemployment and sickness benefit from the DSS until 15 May 1991, and then only after a ballyhoo had been created by that fine gentleman who fights many such cases, Colonel Terence Otway.

Here were three men cut down in the prime of their youth by devastating injuries. They were mentally drained after a two-year ordeal in hospital and of course extremely depressed, at their immobility. They had no personal real wealth. Yet the mighty Ministry of Defence challenged those mutilated men to prove negligence. Worse still, the same Ministry withheld the full findings of the board of inquiry, even though those findings were vital to the proving of their case. It provided only an abridged version which left out the crucial and damning details.

Where was the spirit of the Government assurances that had been given to the Standing Committee on 18 March 1987? It was ignored and the Government fought those injured men to the very last trench. Fortunately, those Grenadiers were lucky. They were members of a strong and family-like regiment which not only gave them invalid motor cars but provided funds for their lawyers. As hon. Members are aware, pressure was brought in the House, by the media, and in the end the Prime Minister intervened and a just settlement was achieved.

Those Grenadiers were lucky, but a parliamentary answer given in another place on 14 October 1991, showed that many others had not been so lucky. Indeed, on that date there were still unsettled over 1,000 claims, 56 of them stretching back to 1987, five years previously.

I appreciate that there can be legitimate causes for delay. For example, there is need to prove negligence and there must be time for gravely injured men or women to have their physical conditions stabilised so that an assessment can be made of the degree of disability. But why are there so many, and such long, delays? Let us not overlook the trauma and anguish that is caused by such delay.

To help alleviate the situation and reduce the delays, I introduced the Armed Forces (Liability for Injury) Bill, which would have reversed the onus of proof for negligence for compensation for armed service personnel who received severe injuries in the course of their duties—

Mr. Deputy Speaker (Sir Paul Dean)

Order. I remind the hon. Gentleman that it is not in order on the Adjournment to discuss legislation. I am sure that he can use his ingenuity to make his points without referring to legislation.

Mr. Browne

I respect that remark, Mr. Deputy Speaker. My right hon. Friend the Minister knows the contents and purposes of the Bill. All I ask is, why does his Ministry continue to try to kill the Bill? Only five minutes ago, an effort was made to stop its progress through the House. It is iniquitous that this sort of Bill is not at least allowed to reach its Committee stage. Why is it not allowed a passage? Why is not the Ministry of Defence pushing the Bill forward to ensure fair treatment for the injured?

Mr. Deputy Speaker

Order. Perhaps I can help the hon. Gentleman. He may refer to changes that he would like to see. So long as he avoids referring to a Bill he will remain in order.

Mr. Browne

Thank you, Mr. Deputy Speaker. I respect your ruling on that.

I turn now to the provision of information by the Ministry of Defence. The first example is the case of the injured Grenadiers. Why was it not possible to produce the full board of inquiry report into an accident in Canada several years previously? The reason was because the report was restricted. Who made it restricted? The major in charge of the board of inquiry. It is easy for any Minister or senior officer to have that restricted qualification lifted. Why was it not lifted? Why was only a precis given to the guardsmen and their solicitors when the full inquiry showed—I have seen it illicitly—a story with interesting information that would have been important to them in proving their case, but was not given in the precis?

The second case relates to Mark Booth, a parachutist in the Fifth Airborne division. He was gravely injured in a mysterious convoy accident. There have been endless delays and the Ministry has provided the minimum of information. Why? How can it be seen as a good employer? I simply do not understand.

Then we have the case of Conrad Cole, Richard Gillespie and Lee Thompson of the Royal Fusiliers and others who were injured in friendly fire accidents in the Gulf. I fully understand that there are problems finding out exactly what happened. Other nations may be involved, there may be diplomatic problems and so on. But why do we refuse to give information and cause anguish and trauma to the injured men and their parents? Surely some of that information could be given up front rather than always having to be fought for, creating such a bad impression.

I have tabled many questions, particularly on the Grenadier case. Some answers came back. I do not know whether they can be called answers—perhaps I should say, replies. They were not only unhelpful, but almost downright rude. I asked for a list of the claims outstanding under the 1987 Act showing the names, the disability claimed and the date of accident. I did not think that that could be too hard for the Ministry. The answer was: No. To do so would be a breach of medical confidentiality." —[Official Report, 21 January 1992; Vol. 202, c. 190.] Could the Ministry not ask the men concerned whether they minded their names being put on such a list? I doctored the question and tabled a further request, this time just for the names and date of accident. I was told: To list the information requested would breach confidentiality and be in contravention of the Data Protection Act." —[Official Report, 27 January 1992; Vol. 202, c. 453.] If that is true, the Data Protection Act 1988 needs amending urgently.

Other questions relate to the board of inquiry report. I asked whether in convening the board of inquiry report into the Grenadiers at Batus range any requirement was made for it to investigate why the blind round remained in an area used for digging outside the impact area of the live firing ranges. The answer was: The convening order directed the board of inquiry to consider all the circumstances that contributed to the accident. —[Official Report, 25 June 1991; Vol. 193, c. 465.] I have seen that board and my view is that it was not asked and certainly did not make any real investigation into why that round was there in the first place. That was bad.

In the interests of time, I shall skip other examples. Why is the Minister of Defence so intent on secrecy in this area? I do not blame my right hon. Friend personally for that. I can understand that if there was an accident on board a nuclear submarine, there would be a real security risk—but not on a live firing range in Canada, an assault course in some Aldershot depot, or a convoy in Cyprus, or wherever. Why does such a great load of secrecy have to swamp every request for information by the injured men, their legal representatives and their families?

Why cannot the Ministry of Defence understand that by not being open, it increases the anguish for the injured men, their parents and their mates? Over time, that anguish turns into trauma. It also lessens the men's chances of bringing a successful suit against the MOD. That, by itself, must be grossly unfair. It makes the MOD appear so very callous and uncaring, and not at all the good employer that we want it to be. That is to the detriment of the Government in general and to morale in the armed forces in particular.

I have spoken about the flexibility that was eroded in the 1987 Act. It did away with the Secretary of State's ability to make ex-gratia payments to those deserving cases that occurred before the Act came into force. I agree that Acts should not be retrospective; I have always voted against retrospective legislation. However, I wish to cite two cases. Martin Ketterick, a Royal Marine, was on an exercise when a rope on which he was hanging while climbing a cliff face was cut by mistake. I accept that it was a genuine accident. The non-commissioned officer responsible was disciplined, so there must be some element of negligence by the MOD as the employer. Why has not that man been given compensation? He is almost a walking vegetable, yet he lies there without compensation simply because his accident occurred before the 1987 Act came into force. Why are not the Government generous enough to make an ex-gratia payment? Why could not such a system, by amending legislation, be built into the Act?

The second case is that of Andy Konalyk, a parachutist who was training on an assault course. It was pouring with rain and he had mud all over his boots. He was 30 ft in the air, he jumped across a 6 ft gap and one of his feet missed the girder on the other side. He slipped and smashed 30 ft to the ground. Six other people were injured on the very same day on the same assault course, so there must be an element of negligence. That man is severely disabled, so why is he not compensated as he would be in civilian life?

There is a clear, moral obligation to give compensation. Where is the heart in the Ministry of Defence—the same heart that it asks for and inspires in its employees, the members of the armed forces? Why are the Government so laggardly in calling for an urgent amendment to the 1987 Act to make good the gaps?

There is a need for the flexibility to award ex-gratia payments to be given back to the Secretary of State. There should be an obligation on the MOD to provide all relevant documents, especially the board of inquiry report, to the people bringing suit or their legal representatives.

If secrecy is involved, could not the MOD think of some way in which the information could be provided just to the lawyers under the Official Secrets Act? Why is no one pressing for that? While the provision of information is denied, there is an obvious and grotesque injustice.

I have highlighted delay, the lack of information and the lack of flexibility in the giving of ex-gratia payments. I want now to talk about resettlement—the vital transition of a badly injured member of the armed forces from their care.

Mr. Deputy Speaker

Order. I am sorry to interrupt the hon. Gentleman, but time is moving on. I am sure that he wishes to be fair to the Minister and give him an opportunity to reply.

Mr. Browne

I do, Mr. Deputy Speaker.

At this vital time of transition, the badly injured person moves from the care of the armed forces into local authority care. Such people are often severely injured and they should be prepared early for that transition, not in the last two weeks before they are finally invalided out of the armed forces. My right hon. Friend the Minister was an officer in the Coldstream Guards. He knows that officers in the Foot Guards must visit people in hospital every week. That is not universal practice, however. Surely it should be insisted on that men are visited in hospital, even if they are in a civilian hospital. Sometimes the Ministry does not know where a man is, because he is still in a civilian hospital.

Will the Minister also consider the possibility of ensuring that the Ministry liaises with the local authority concerned, the local office of the Department of Social Security, the Soldiers, Sailors and Airmens Families Association and the Royal British Legion, especially the latter. Peter Godley is outstanding when it comes to helping people with claims, but surely the MOD should be obliged to ensure that such liaison takes place.

The MOD suggested today that men take out insurance. The package is advantageous, although I do not think that it has many advantages over normal holiday packages.

On the whole, insurance is sold rather than bought. I am amazed that the MOD should imagine that 18-year-olds—physically fit and full of idealism—will start thinking at a depot, "I am going to insure myself against accidents." It is unreasonable to expect that.

I believe that it should be a condition of employment for every member of the armed forces to take out insurance. The payments should be deducted from their pay. If the MOD considers that too severe, it could—like an ordinary employer—subscribe to the cost. The insurance should be organised on a bulk basis; if it were arranged for the armed forces as a whole, the rate would probably be considerably reduced.

If the Government do not want that, why do they not insure themselves? They would then be more able to give generously in the event of accidents.

The United States has a veterans' department, which does an excellent job. I sometimes feel ashamed when I see how American veterans are treated—especially the injured —compared to the way in which ours are treated. Will the Minister consider introducing a similar organisation here?

I have left my right hon. Friend very little time, and I do not expect him to give detailed answers now, but I hope that he will be prepared to put his replies in the Library. Will he consider amending the 1987 Act to allow ex-gratia payments and to require the MOD to produce relevant documents?

Will he also agree to lay down enhanced regulations for resettlement on this vital matter of transition, requiring in particular liaison between the MOD and the organisations that I have mentioned? Will he require the MOD to publish status reports, on a three-monthly basis on cases that have not been settled?

Finally, will he examine in depth the whole question of compulsory insurance and the establishment of a veterans' department?

I thank my right hon. Friend for coming here today, and I apologise for leaving him so little time to answer.

3.3 pm

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

My hon. Friend the Member for Winchester (Mr. Browne) has raised an important subject concerning the position of Ministry of Defence personnel—both service and civilian—who are killed or injured in the course of their duties. I am grateful for being given the opportunity to explain the position on some of the issues arising out of this matter. It is, however, a complex subject and, as it concerns the whole question of legal liability and the relationship between employers and employees as it is dealt with under the law, I am sure that the House will readily understand some of the background to the subject. However, it may be helpful if I give a short account of the way in which the present legal position on injured personnel has developed.

My hon. Friend mentioned the Crown Proceedings Act 1947, which enabled servants of the Crown to take proceedings against the Crown in the same way that any other employee could proceed against his employer. However, section 10 of the Act prevented the Crown or a member of the armed forces from being sued for damages for injury or death of an on-duty service man due to some negligent act or omission by the service. The House will recall that the law was changed in a Bill presented by my hon. Friend the Member for Davyhulme (Mr. Churchill) and section 10 was repealed in 1987. While this removed the prohibition on members of the armed forces suing other members, or the Crown, it did not alter the law of evidence or the substantive law of tortious liability.

The Ministry therefore has a legal liability to pay compensation to service personnel where negligence can be established by the Ministry or someone acting on its behalf. The effect of the repeal of section 10 was to put service personnel in the same position as the Ministry's civilian employees—or, indeed, any other civilian worker—as regards the right to seek compensation for injuries received in the course of their work.

There has been much debate and a number of proposals have been made on proposals to change the basis of legal liability. They seek to remove some of the perceived disadvantages, particularly for service personnel, in claiming compensation from a Department of State such as the Ministry of Defence. One proposal was to extend the legal rights and remedies of service men to place them in a far more favourable position than Ministry of Defence civilians or any other group of civilian employees, by imposing an absolute liability on the Ministry in removing the requirement for service personnel to prove negligence when taking civil actions for damages against the Crown.

Although no one is more aware than I am of the worth and value to this country of our service personnel, and the risks to which they are exposed, the proposal to change the law in this way cannot be right. It is a fundamental principle of our system of civil law that for one person to seek compensation from another, that person must show that a wrong, causing him damage, has been done to him by the other party. In the sphere of employer's liability, it is not a principle of the law that an employee may claim compensation from his employer whenever he suffers an injury at work, regardless of whether the injury was attributable to an act of negligence and however much he has contributed to his own misfortune. That applies whether claims are settled in or out of court directly between the parties involved. The proposal would he contrary to current legal principles on personal injury and employer's liability under the law of tort and it would have ramifications far beyond the narrow scope of the proposal itself.

That does not mean that Ministry of Defence personnel, service or civilian, are left without any financial benefits if they are injured in the course of their duties. Indeed, the arrangements under service and civilian pension schemes compare very well with best employer practice. Any service man who is obliged to leave the service because of an attributable injury is eligible for pension and disability awards from the Ministry of Defence and the Department of Social Security, which administers the war pension scheme. Those awards are either lump-sum payments or pension payments with an additional lump sum. They are tax free, index linked to cover inflation, related to the degree of disability and reassessed if there is a deterioration in the individual's condition.

Those awards are made automatically, on a no-fault basis, if a service man is invalided as a result of his injuries. He is not required to prove negligence or make any legal claim for damages, with all the risks attendant on that process. Similarly, in the event that a married service man dies as a result of injuries attributable to service, enhanced benefits are paid under the Ministry's pension scheme to his widow and any eligible children. They are also able to benefit under the Department of Social Security war pension scheme. Civilian employees of the Ministry of Defence are eligible for benefits under the civil service pension scheme where injury or illness results in premature retirement, and may receive an enhanced pension for loss of earnings capacity where this is attributable to their employment.

The motion having been made after half-past Two 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 thirteen minutes past Three o'clock.