Armed Forces Bill

HL Deb 19 May 1986 vol 475 cc7-17

2.51 p.m.

Lord Trefgarne

My Lords, I beg to move that the House do now resolve itself into Committee on this Bill.

Moved, That the House do now resolve itself into Committee.—(Lord Trefgarne.)

On Question, Motion agreed to.

House in Committee accordingly.

[The EARL OF LISTOWEL in the Chair.]

Clauses 1 to 3 agreed to.

Clause 4 [Elimination of distinctions between certain offences]:

On Question, Whether Clause 4 shall stand part of the Bill?

Lord Graham of Edmonton

Before we allow Clause 4 to stand part of the Bill I intend to raise with the Minister a matter of crucial significance for many outside the Chamber. As the Marshalled List shows, Amendment No. 1 stands in my name, but I have been advised that its terms do not fall within the proper rules of debate; in other words, it is out of order. Therefore it is not my intention to move it. But this Question provides me, and I believe many others, with the opportuniy to look, in essence, at the matters raised in that amendment.

Clause 4 is entitled: Elimination of distinctions between certain offences". Subsection (2) states: In section 69 of each of the 1955 Acts and in section 39 of the 1957 Act (conduct or neglect to the prejudice of good order and military discipline), for the words 'of any conduct or neglect' there shall be substituted the words, 'whether by any act or omission or otherwise, of conduct' ". Members of the Committee who follow these matters will be aware that for a number of years there has been concern or agitation over the question of Crown immunity. The ability of the Crown, by virtue of an Act, to plead that its servants are not to be held liable for damage, injury or death to servicemen in peacetime needs to be reviewed. When speaking to this matter I am sure that the Minister will give us his advice on the current position of such a review.

I simply want to tell the noble Lord that there is widespread support for the provisions in the clause but that many would wish that it went beyond them. The Committee will be aware that in another place there has been steadily mounting concern on an all-party basis. Those who volunteer—because we have an all-volunteer service and there are no conscripts—are often placed in intolerable and indeed tragic circumstances by virtue of the present state of the law.

I have here—and the Minister and his advisers will be well aware of it—an Early Day Motion put down in another place. We all recognise that that procedure is simply a device or a peg on which to hang an opinion. The history and subsequent effect are limited. But the Minister will be aware that more than 130 Members of another place put down their names to Early Day Motion 450, which says that the current state of the law in respect of compensation for acts committed against servicemen needs to be reviewed. That refers to Section 10 of the Crown Proceedings Act 1947, as does my amendment.

This is not a party matter. I took the trouble to look through the list of those who put their names to the Motion asking for a change in the law and in the compensation. Thirty-seven members of the noble Lord's party are satisfied that a change needs to be made. The long list includes ex-Cabinet Ministers who have lent their names to the Motion, new Members, and a great many knights who are long-serving Members who have followed such matters for a long time. It also includes many members of the SDP and the Liberal Party, and a great many from my side.

No one in this House can be satisfied with the present position. Since at least 1983 the Minister and his colleagues have said that the compensation for servicemen who suffer injury and for the parents or other next of kin in the case of death requires review. I am satisfied that he will present to us the result of that review as early as possible. In the meantime we have to live with some very distressing facts.

The subject was given a good airing in an Adjournment Debate by my right honourable friend Jack Ashley. It was supported by others. I know also that the Minister was present earlier this year at a meeting that was held on an all-party basis. The honourable Member Ian Grist was also there and he has expressed the strong view that if the matter came to the Floor of the Commons there would be wide support for it.

3 p.m.

What is it that I am asking the Minister to express sympathy with? The position is encapsulated in an extract from an Adjournment Debate that took place on 26th March 1985, when Mr. Jack Ashley asked the other place to listen carefully to a letter that he had received from a lady. The extract reads: 'Jonathan is dead. He sustained 60 per cent. burns when a Seacat missile was fired by mistake. He was our son. He was just eighteen years old and he died before we could reach him. Steven was seventeen years old. He was thrown from an R.A.F. truck, or was he? No-one seems to know for certain. He was irreparably brain damaged anyway, and died within a few hours. Kevin took rather longer about it. When he was found floating face downwards in a vat of lethal cleaning fluid he was seventeen years old. When he finally died he was twenty one years old and he weighed less than four stone. There is nothing you can do for Jonathan or Steven or Kevin, but you can help those who have been injured. You can also help to ensure that greater care is taken in the training of all young servicemen'."—[0fficial Report, Commons, 26/3/85; col. 238.] The noble Lord the Minister and his advisers, who keep closely in touch with such matters, will be well aware of a Yorkshire television programme "In the line of duty" in which those cases and others were given prominence. I do not want to anticipate the final report of the Minister, but I wish him to take on board the injustice felt at the differences in the rights and responsibilities of civilians and the rights and responsibilities of those who serve in the armed forces.

I appreciate that there are differences, but we are talking about 17 and 18 year-olds. I recognise that they have a contract and that the services pay a great deal of attention to this matter. I wonder how much attention is paid to the fact that when a tragedy of the kind that I have outlined takes place the ability of servicemen to have recourse to the law is limited. I am sure that the noble Lord the Minister will tell us that there are other ways in which a distressed and aggrieved serviceman and his family can obtain redress. When the 1947 Act was put on the statute book questions were asked about what the servicemen would get for giving up their right to sue. There are lump payments and pensions. I have seen correspondence that the noble Lord has had with Members of another place in which he fairly points out that some of the figures that I have given are not the totality of the support which such people receive. I am not making a political point.

I hope that the Committee will allow me to quote what Mr. Anthony Lester, QC, an eminent man who is respected in these matters, said in that television programme.

The Countess of Mar

I am sorry to interrupt the noble Lord, but I thought we were debating whether Clause 4 should stand part of the Bill. What he is speaking about seems to bear no relevance to the elimination of distinctions between certain offences. It sounds as though he is talking about compensation. There is nothing in the Bill that covers compensation. Could he please elucidate?

Lord Graham of Edmonton

I do not know whether the noble Countess was here when I first rose to my feet, when I said that it was my intention to deal head on with that issue in Amendment No. 1. However, the amendment that I have tabled is due to follow the debate on Clause 4, which substitutes the words: whether by any act or omission or otherwise, of conduct". The cases that I am using to illustrate my point can be argued to be due to the "act or omission or otherwise" in the conduct of members of the armed services. In those circumstances, should we not use this opportunity to hear from the noble Lord the Minister where we are in respect of the review of the rights of servicemen to take the Crown to court? I should be grateful if the Committee will bear with me over a matter which deeply concerns not merely the limited number of cases that have been drawn to my attention but to many others.

In the television programme to which I have referred Anthony Lester said: You find a man involved in a motor accident in Germany, to take an example I know well, a man of 50 with a very promising career in the RAF, in hospital for five months, seriously disabled, but not so seriously that he has to be retired from the air force. As a result, he gets no pension of any kind because he hasn't yet retired, and not a penny for him or his dependants. Another example: a man goes into an RAF hospital, really in civilian conditions—we are not talking about field stations or the front line in wartime, an operation which goes wrong. He says it is the fault of the surgeon. He may be right, he may be wrong. Now, if it happens to you or to me we could sue for negligence and expect to get damages if we could prove our case, but that man is receiving a pension worth about 60 per cent. of the total he could possibly recover and he and his wife are in quite terrible circumstances without any funds at all. We are rewording the provision which relates to members of the services who are covered by the Armed Forces Bill and which the Committee is asked to approve today. We are asked to agree to a form of words which will include: whether by any act or omission or otherwise, of conduct. I should be grateful if the noble Lord the Minister recognises that this is a valid opportunity to deal with that matter.

I think the noble Lord is also aware of other Early Day Motions. Early Day Motion 212 relates to compensation for service personnel at nuclear tests. That is a matter of current debate. It will be seen, when these matters are considered fully, that there are some members of the armed forces who carry some responsibility in these matters. The provision I am talking to is: whether by any act or omission or otherwise, of conduct. Many aggrieved ex-servicemen will feel they are entitled to pursue their interests in these matters in another way.

I hope that the noble Lord and the Committee appreciate that we are talking about a Government statement which says that wherever possible they wish members of the armed forces to have equality with the civilian population. The civilian courts have taken on many new responsibilities. Later, we shall be asking the Committee to approve a similar reform of courts martial. We are asking whether the noble Lord the Minister has anything helpful to say at this stage to people outside your Lordships' House. The noble Lord knows, and the Committee will appreciate, that much more can be said about individual cases, but I believe that I have said sufficient to allow the noble Lord to be helpful to the Committee.

Lord Denning

May I say a word about this matter? I am doubtful whether it is legitimate in this debate to bring in this subject for discussion. Perhaps, as I have had some experience of the Crown Proceedings Act 1947, and knew the situation before, I may tell your Lordships what the position was. Before 1947 there was a maxim in the law which said, "The Crown can do no wrong". As a result, if a government lorry careered down a street and knocked down a bystander, that bystander could not sue the Crown or the government department in tort for damages.

We got round it a little in a particular case. Soon after the war a mine exploded on the sea shore near Criccieth. Those injured wanted to sue the government department. The House of Lords had to say that the Crown could do no wrong and that there could be no remedy. To remedy that we had in 1947 the Crown Proceedings Act that made it lawful for any citizen who was injured by the negligence of a government department or its servants on the road or anywhere else to sue for damages the same as anyone else. The government department was just as liable as any other concern.

There was, however, in Section 10 an exception to the new law—an exception that related to the forces of the Crown. If there was an accident in the training field—say, for instance, that a vehicle ran over a man and injured him, or a mine exploded by accident—Section 10 stated that the individual who was injured had no right of action for damages provided that the Minister certified that it was attributable to his service. If it was attributable to his service, he was treated just as any man injured in the war or suffering from a disease due to the war who, under the Royal warrant, received his pension. I was the nominated judge for the war pension appeals in all their numerous numbers in 1945 and 1946. I heard the appeals of our soldiers injured and wounded in the war and the appeals of those who were sick. The Ministry of Pensions did the job very well. Its awards were given. Some appeals came to me. The relatives of those killed in the war and those who were injured were well treated.

What is the position being raised today? It is said that pensions under the Royal warrant are to go. Those men have to sue and to prove negligence. They have to face a claim against them for contributory negligence, and unless they prove negligence by, say, a driver, they get nothing. This will be like ordinary civil litigation where a man injured in any way has to prove negligence. He can be met by cross-claims that he has not proved negligence or that he has been guilty of contributory negligence. Those experiences are very harmful to society. The important report of the Royal Commission of Lord Pearson and his colleagues recommended that instead of all this litigation for compensation it would be much better to do away with the litigation and controversies about negligence and have a pension or weekly award. In the experience of the Royal Commission and many lawyers it is far better that the injured person should have a good pension than a lump sum that may do him no good at all. That is the issue. The question is whether the Royal warrant procedure should go, whether the pension procedures for those who are injured should go, or whether all the pensions, where there is no need to prove negligence, should be taken away and the injured person left to go to a court of law.

I have tried to show that this is a wide question and really not fit for determination at the Committee stage of a Bill such as that now before us. It is an issue that requires long and reasoned debate by Parliament before a decision can be reached.

3.15 p.m.

Baroness Turner of Camden

I rise to support the comments made by my noble friend on the matter of Crown immunity. There is a strong case for repeal of a provision that has, I understand, existed since 1947 and that provides for total immunity to any legal action or claim for damages where negligence has resulted in serious injury or death of a member of the armed services. I understand very well the reasons why my noble friend's amendment has been ruled out of order as not apposite to the Bill. I should, however, like to hear the views of the Minister on what has been said.

There has been substantial agitation for a change in the law on the issue of Crown immunity. I have been supplied with instances, as has my noble friend, Lord Graham. I should like to refer to one, because it relates to the compensation aspect. It is the case of a young man called Martin Ketterick, was was descending a cliff as part of his training when the instructor cut through the supporting rope. He fell onto his back and is now completely paralysed. It is a case that, had it occurred in civilian life, could conceivably have attracted damages if there has been a case at common law. What happened in the case of Martin Ketterick, however, is that he was invalided out of the Marines with a gratuity of £3,553 and an invalidity pension of £47 a week. It is estimated that pensions paid in this way in total over a lifetime are approximately one-third of the awards that could be claimed if such a case was successful in the courts and if a lump sum was paid.

It is not only young people injured while taking part in a training programme in the armed forces who have got into this situation. As the Committee knows, I am a trade union official. Our union has been approached from time to time for assistance by union members who believe that they are currently suffering physical damage as a result of their experiences while working in jobs attached to HM forces. The most notable example concerns individuals who were involved in the atom bomb tests in the Pacific back in the 1950s. A number of these people believe strongly that they suffered radiation damage. They have appealed for suport to the union of which they are now members. I have to tell your Lordships' Committee, however, that it has proved impossible to get these cases off the ground at all because of the doctrine of Crown immunity. Had these individuals been damaged in this way while in normal civilian employment, they would almost certainly have been able to sue at common law and almost certainly would have been able to look forward, I believe, to substantial damages.

At least it should be possible to amend the law to cover those not on combatant duties. It is surely unacceptable that where serious injuries are sustained the families and the individuals concerned should have no compensation of a kind that they might expect had they been injured in civilian life.

I realise that this is not an appropriate point for an amendment to the Bill. I understand the reasons for that. I would, however, join my noble friend in asking the Minister to look at the situation. It is being looked at in another place. I know that there is agitation going on about the whole issue of Crown immunity. I would therefore be grateful for a response by the Minister.

Lord Campbell of Alloway

I hope that the Committee will allow a brief word of total and unqualified support for the advice that the noble and learned Lord, Lord Denning, has given from his experience. It would be wrong to depart from the warrant procedure that works reasonably well. There may be hard cases here and there, but in general it works well and works fairly. To expose applicants to a negligence action has serious disadvantages. At all events this is a matter of very important principle which warrants, as the noble and learned Lord has said, far deeper and more leisurely discussion than could ever be afforded in this Chamber.

Lord Mayhew

May I begin by apologising to the noble Lord, Lord Graham, for not being present during the opening sentences of his speech. I gather that there was some procedural difficulty. Whether, had I heard it, I should have understood it, I do not know. However, it seems to be in order to discuss Amendment No. 1, whatever the ruling may have been.

I should like to say how impressed I have been—and think my noble friends would agree with me—with the case made out by the noble Lord, Lord Graham, and by the noble and learned Lord, Lord Denning. It seems that the substance of this question is simply not capable of being contested. I am not at all surprised to have heard from the noble Lord, Lord Graham, of the very wide all-party support for the point of view that he put forward. Equally, however, it is clear that this is a huge subject of enormous importance. It is my guess that the Minister will say that there is a departmental inquiry. Perhaps we should study very carefully the report of the Ministry of Defence on this question before reaching a decision—whether it is in or out of order at the Committee stage of this Bill.

I note that at the Select Committee the Labour speakers did not go so far as the amendment of the noble Lord; Lord Graham. The recommendation of the Labour Party at the Select Committee was 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". This seems to me a good line to take. I feel this more strongly having listened to the debate. I believe that this would correspond with the views of my noble friends. After all, the present situation was accepted by successive governments for a long period of time. It seems to me that we should consider this extremely carefully and address ourselves to it as soon as the Ministry of Defence reports. That does not mean that the ministry should not expedite its report. Perhaps the Minister will state when the report is due and whether it will be published. In the light of that, perhaps we can take a later decision.

Lord Trefgarne

It is perhaps a pity that the noble Lord, Lord Mayhew, was not in his place when this debate started because he would then have learned that the noble and learned Lord, Lord Denning, did not for a moment agree with the noble Lord, Lord Graham. Indeed, the noble and learned Lord was right to point to some of the difficulties and complexities of this matter.

It is not a simple and straightforward matter for one moment, as I myself have been made aware during the course of the inquiry that is now under way. I am not the chairman of the inquiry but I am the Minister responsible for these matters within the Ministry of Defence. In the first instance the inquiry will report to me and then to my right honourable friends. This inquiry is a comprehensive one. It has been under way for a little while and will certainly be completed just as soon as possible, and an announcement will then be made.

I am very sorry that it is not possible for me to go further this afternoon. I well understand the wide range of views that have been expressed on this matter. They are views which have come from both ends of the political spectrum and from a wide range of opinion outside Parliament as well. The Government are certainly taking all these views into account, and when we have the benefit of the study to which I have referred—which we hope to complete just as soon as possible—then an announcement will be made. I am afraid that I cannot be specific as to when that will be, but we well understand the anxiety which people feel in this matter.

Having said that, I believe that everyone would agree that we should not speed up the inquiry to the extent that we get an inadequate or wrong answer. I am sorry that I cannot be precise as to when the inquiry will be completed or when we shall be able to make an announcement following that inquiry, but I shall certainly undertake that we shall do both as soon as possible.

Lord Shepherd

May I ask the noble Lord whether it would be the intention of the Government to publish, shall I say, the results of the inquiry, so that we can have a better understanding of the difficulties to which, clearly, the noble and learned Lord, Lord Denning, referred? There is a deep sense of anxiety and injustice that is felt by many others. I think that your Lordships would benefit more from seeing a report on the matter than from merely a statement by the Government.

Lord Trefgarne

If I may be allowed to answer the noble Lord on that point, the study that is going on and the documents which will flow from it will be in the nature of advice to Ministers. As the noble Lord will appreciate, advice to Ministers is not normally published. However, having said that, we shall certainly want to give as much information as possible about our decision when we reach it, and the basis upon which we reach that decision. I do not think the noble Lord will have any cause for complaint about the quantity of information we shall make available at that time.

Lord Elwyn-Jones

Can the noble Lord give some approximate idea when this is likely to be? I appreciate the difficulties. It covers a very wide field. Is it contemplated that there shall be a Green or White Paper beforehand, or a decision to legislate? How does the noble Lord see the future of this matter? It obviously is of very considerable public concern. I note the hope that was expressed by my noble friend Lord Shepherd that there would be the publication of an informed paper, or whatever it may be, on this matter. It raises many wide issues.

Can the Minister and his colleagues think again about this? I know that there is a way of using Green Papers as a delaying stratagem. I make no admissions, of course, about any previous administration, but it has been known to happen. However, time is of importance in this matter. These sad cases are happening, and injustices are being brought about. I therefore ask two questions. First, when is it likely that there will be a conclusion? Secondly, can there not be some public information given beforehand by the Government?

Lord Trefgarne

Such information as I have so far on this matter leads me to understand that this is a much more complicated matter than we had at first imagined. When it comes to announcing some conclusion—and I am afraid that I cannot be specific on when that will be—I think the conclusion will be fairly straightforward. It will be either to abolish the present arrangements, to repeal the present protection that the Ministry of Defence and the armed forces enjoy in this matter, or to leave matters more or less where they are. Although there are a number of compromise possibilities that have been canvassed, they, too, present enormous complexities and difficulties. For that reason, they are not particularly attractive.

Added to that, we have to offset whatever new arrangements we might wish to set in place with the benefit of the existing arrangements. I think that the noble and learned Lord, Lord Denning, underlined those very effectively when he pointed out that under the present arrangements members of the armed forces, sadly injured, do not have to prove negligence and do not have to go to court at all to get the benefit of the payments we make in terms both of bounty and of future pensions.

There are those who say that the present arrangements are as attractive as they should be and that any future arrangements, given the uncertainties that they would inevitably involve, would be a good deal less beneficial to those sadly injured in these circumstances. These are the types of complexity that we are having to consider and to juggle with. I hope that noble Lords will therefore bear with me if I say that it is not possible for me to be specific now. It is a matter which is addressing Ministers' minds on regular occasions.

One noble Lord mentioned that an important delegation attended on my right honourable friend the Secretary of State for Defence not long ago. I was there on that occasion and listened very carefully to the views that were expressed.

3.30 p.m.

Lord Graham of Edmonton

Because this is the Committee stage I am entitled to make a few more observations. I am grateful to the Minister, and for the forbearance and tolerance of the Chamber, which recognises that this is a very important matter. The Minister provides us with the reason why we should not let this opportunity go by. He talks in terms of reporting "just as soon as possible", but that kind of language—this is not meant to be offensive—has been used frequently over the past period.

There are people outside who are not looking at this as academically as we are, even though our hearts may be full. They are the people who are suffering, or whose families are suffering, or whose parents are bereaved and bereft. I make no apologies to the Committee and nor, I believe, does the Committee expect me to make an apology for using this opportunity. The last thing I seek is for the Committee to come to a conclusion, but the mere fact that we have stirred the issue I think will mean that the next time it does come forward we shall at least be a little better prepared.

I have to say to the noble and learned Lord, Lord Denning, that he seemed to me to present the argument as one of either pension or the opportunity to sue. You cannot have it both ways. There are people who are employed in the public service who do have it both ways. The police and the firemen are able to get a pension and still have the right to sue the Crown. If I am wrong, of course I shall be put right. The noble and learned Lord, Lord Denning, may do it now or later and so may anyone else, but the records which I have read in preparation for this debate have told me that what is happening is that there are members of the public services—not the armed services, but those that you and I would say are at least as entitled to protection because they take risks on our behalf—and the police and the firemen have been quoted to me. What we are saying is that what is good enough for the police and the firemen ought to be good enough for members of the armed forces who take risks who actually engage in the exercises which they do which are as lifelike as possible, and who then find they are in some difficulty.

Let me tell the Committee of my own personal experience, not during peacetime but in wartime. Mr. Ketterick was mentioned in the case described by my noble friend Lady Turner. That gentleman was in the Royal Marines and so was I. During the war in the Royal Marines in the pursuit of making myself ready for armed conflict I went through what was called a live ammunition exercise in Wales, at the foot of Llanberis. During the course of that live ammunition exercise I received Bren gun bullets through my back and my legs. I did not have any right to compensation and nor did I expect to because it occurred under conditions of war, but if the same thing had happened in peacetime I should certainly say to a serviceman who, through no fault of his own and perhaps by the negligence of his fellows, was injured, perhaps by virtue of this clause and due to the negligence of some people in the armed forces, that he would be entitled to take to court the fact that his circumstance was due to an error in carrying out proper safeguards and precautions, etc.

What in fact we are saying to the Minister (and there are many people outside) is that that in fact is what we want. May I remind the Minister also that in the Early Day Motion the names are Mr. Jack Ashley, Sir David Price, Mr. Paddy Ashdown, Mr. Roy Mason, Mr. John Hannam and Mr. Gordon Oakes? Members of the Committee who follow these things know that that is as all-party a body as one can get. The other names are the same, but what is important is that the Motion they want concerns those engaged in non-combatant duties and they want to make retrospective provision for the date of passing of the Act. This is what we are saying. We are concerned not only about the future but also about the terrible and tragic cases coming to our attention.

However, I am satisfied that the Minister has gone as far as he can. I very much hope that he will not simply say that he and his colleagues are watching this and are looking at it. I do appreciate the complexities. The Minister is quite right and no solution is likely to find universal favour. There will be some saying that this does not take account of their circumstances and some saying that they are entitled to that, but all I am saying is that the present position is wrong and Clause 4 allows us an opportunity to raise the matter. Certainly it would not be my intention to do other than to allow Clause 4 to stand part of the Bill.

Clause 4 agreed to.

Viscount Long

My Lords, I beg to move that the House do now resume.

Moved accordingly, and, on Question, Motion agreed to.