HL Deb 07 March 1987 vol 487 cc209-20

8.49 p.m.

Lord Gisborough

My Lords, I beg to move that the Bill be now read a second time.

I hope to be able to explain that, although this is a short Bill, its brevity belies its real significance, since it aims to put members of the armed forces on a par with their fellow citizens in peacetime by allowing them or their dependants the right in future of access to the courts to sue for legal fault in cases of death, personal injury or illness attributable to their service. It seeks to do this by repealing Section 10 of the Crown Proceedings Act 1947.

I believe that the Bill is largely uncontroversial and has received a wide measure of support both in another place and in the country at large. Therefore I am glad to be given the opportunity to introduce it into your Lordships' House, since it seeks to remedy a discrimination which has become more and more evident over the years between member of the armed forces and their fellow citizens in civil life in seeking damages in cases of injury or death arising from the negligence of others. I trust that your Lordships will be able to give a fair wind to what I believe is a very commendable and popular measure and one which deserves our full and early support.

Section 10 of the 1947 Crown Proceedings Act was originally enacted because members of the armed forces, by the very nature of their profession, were called upon to perform hazardous tasks which can go beyond anything likely to be encountered in normal civil employment. I quote the words of the noble and learned Lord, Lord Shawcross, the then Attorney-General, during the Second Reading of the Crown Proceedings Bill in another place in July 1947: 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 then accepted that it would not be right for service personnel, even in peacetime when it is often essential to push training to the limits of realism, and with risks which are similar to those encountered in actual operations, to be able to bring civil actions for negligence against each other. It was considered in the atmosphere of 1947 that to do so would run counter to the fundamental requirement for mutual trust, confidence and loyalty essential for an effective fighting force.

Forty years have now passed. The general climate of public opinion in the whole field of civil and human rights has changed considerably since the legislation was enacted. There is less willingness in society to accept that the special circumstances of life in the armed forces justify depriving the servicemen or the servicewomen of the rights and benefits enjoyed by their fellow citizens, particularly in peacetime.

I believe that this change of opinion goes in the right direction and that we should heed the message which society is sending us. Section 10 of the 1947 Crown Proceedings Act is now outdated and puts at a disadvantage a section of society in peacetime in a way which does not apply to those of us who do not wear the serviceman's uniform.

Section 10 is not a complete ban on legal action by servicemen, but in very broad terms it provides an absolute defence for the Crown, and for other servicemen, against actions alleging negligence brought by servicemen, or their next of kin, who are injured or killed in circumstances attributable to their service. Servicemen are, however, eligible for a no-fault system of payments under which they receive a special gratuity and pension when they leave the service. From the serviceman's point of view this means that at present he loses the prospect of seeking, through litigation, a lump sum award from a court, but instead, if he is entitled to an invalidity pension, he does not have to prove negligence, and the pension is payable irrespective of the presence of negligence, even if the negligence is his own. Furthermore, the pension is tax free; it is adjusted each year for inflation, and can be further increased if there is a deterioration in the serviceman's condition.

Let us not forget that Section 10 was enacted four decades ago, and much of what was valid then is not so today. If I may refer once again to the words of the noble and learned Lord, Lord Shawcross, during the Second Reading in another place of the original Bill in July 1947, he acknowledged that if a soldier who had been injured on duty remained in the service he would receive proper medical treatment and care, and if a soldier was invalided out of the service, or if he died, then he or his dependants would have pension rights. He then 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". That is no longer the case. In recent years the tendency has been for courts to award steadily higher damages, and these have now risen to a level which can be considerably greater than the benefits which members of the armed forces might be eligible to receive. Furthermore, many civilians in similar circumstances can also obtain largely comparable benefits, but those civilians have the added advantage of being able to pursue in court a claim for civil damages against a wrongdoer. This is the anomaly which the Bill seeks to correct.

The Bill seeks to repeal, from the date of its enactment, Section.10 of the Crown Proceedings Act 1947, while retaining the power to reactivate the section in the event of actual or impending hostilities or at a time of great national emergency. I believe that there is general agreement that when servicemen are in battle they should not be able to sue one another for negligence; and so this provision to reactivate Section 10 in such circumstances, embodied in Clause 2 of the Bill, is clearly sensible.

Clause 1 of the Bill states that the provisions of Section 10 will continue to have effect in relation to those wrongful acts or omissions giving rise to injury which were comitted before the date of enactment. In other words, the repeal of Section 10 will not be retrospective. There are several very good reasons for this. The first and perhaps most obvious one is because of the commonly-held principle that new legislation is for the future and not for the past; it is prospective, not retrospective.

Secondly, if repeal were to be made retrospective, then logically the Government would have to consider any claim arising since the enactment of the original legislation in 1947, as there is no logical cut-off point in time since then beyond which claims could not be accepted. Consider the injustices which would result if some cases could be brought to the attention of those responsible and argued coherently because witnesses and papers were still available and memories were still intact but many others could not.

Thirdly, and perhaps more importantly, it would surely be wrong and unfair to impose retrospective legal liability upon a serviceman for his past actions, even though the individual may not in practice be financially at risk, because it would be the Ministry of Defence that would generally be sued, and in any event the department would stand behind him. Irrespective of whether the Crown as the employer has or accepts liability for the cost of settling claims or damages awarded against a serviceman by a court, and whether or not the individual was sued personally, it would still be necessary to turn back the legal clock because in most cases the liability of the department must depend first upon proof of the fault of the individual serviceman. That may be a point of law, but it is also a very important point of principle which argues strongly against making the repeal of Section 10 retrospective.

I am aware that this issue of retrospection has generated much interest both in another place and also outside Parliament. I understand the very deep sincerity felt by those who believe that it is unjust to exclude from the provisions of this new Bill those who have been injured, or who have been tragically killed, as a result of incidents in the past and who will not therefore benefit from the repeal of Section 10. But I find compelling the arguments for not legislating retrospectively. I believe that we must avoid at all costs creating more injustices, more disappointment and more bitterness. As I have already mentioned, there is a system of automatic payments of disability and pension benefits for those who have been injured in the past and for the bereaved dependants of those tragically killed which ensures that they are not left without any form of financial assistance.

Turning to the remaining clauses of the Bill, these are largely technical clauses dealing with consequential adaptations of existing enactments, with the financial and public service manpower implications and with interpretation and extent.

In conclusion, I suggest that the time has now arrived when we should remove what has become an anomaly from the statute book and provide servicemen and servicewomen with the right of access to the courts in cases of death or personal injury sustained during the course of their employment, which is something that their fellow citizens have long enjoyed. I therefore commend the Bill to the House. I beg to move.

Moved, That the Bill be now read a second—(Lord Gisborough.)

9 p.m.

Lord Meston

My Lords, I am sure that we should all like to thank the noble Lord, Lord Gisborough, for the introduction of this important Bill and his careful explanation of it. Shortly after the Falklands war a friend of mine who served as a doctor in the Army Medical Services described to me the circumstances of three soldiers who were lying in adjacent beds in the hospital in Woolwich. One had been on duty in an open vehicle travelling along a road in Germany. An unlit French tank came in the opposite direction with its barrel pointing to the side into the roadway rather than straight ahead. The barrel caught the British soldier whose neck was broken and who was rendered tetraplegic. That soldier would receive a disability pension and what I think is still called the war pension but would have no lump sum.

The second soldier had been seriously wounded in the Falklands. He would receive a lump sum out of the funds subscribed at the time by the very great generosity of the public but he would have no clear idea of how the sum was calculated. The soldier in the third bed had been wounded in Northern Ireland. As I understand it, he would have received payment under the Criminal Injuries Compensation Scheme. So, there were three soldiers who all had injuries and impairments that were attributable to military service, each of whom would be receiving different sums on different bases from different funds.

It is trite, but I think quite fair, to say that a serviceman has no choice about the precise circumstances in which he is injured. Those disparities unfortunately will not be removed by this Bill. But if there had been a fourth soldier in a fourth bed who had had the wrong leg amputated by the carelessness of my friend—who, I hasten to say, is a very careful doctor—as the law stands he would have no redress at all. Meanwhile, if next door in a civilian hospital there had been people who had been injured in road or industrial accidents, they would be able to claim a full range of damages for their injuries and their financial losses. Those civilians might be policemen, prison officers or firemen who had been injured in the course of their duties. In short, the case for the repeal of Section 10 is obvious.

I should like to congratulate those responsible for its promotion. It is a valuable piece of reform and entitled to all-party support. If one looks back to the debates that took place on the 1947 Act before it became law, as the noble Lord has just done, it was then considered almost unthinkable that servicemen should have a right of action for negligence. It was also argued, as the noble Lord told us, that they would receive compensation ex gratia or pensions roughly equivalent to common law damages. Since then, as he has told us, the measure of damages recoverable at law has become not only more sophisticated but substantially more generous. In itself that must be another good reason for equating the position of the serviceman with his civilian counterpart.

We are all aware of the pressure that has been imposed to make this Bill retroactive. The noble Lord has dealt with the arguments. To me there seem to be at least two problems. First, as he told your Lordships, Parliament is naturally reluctant to make legislation retroactive, particularly in this kind of case, if it would impose a liability for acts and omissions committed up to 40 years ago. Secondly, one suspects that there is a practical problem in that to amend the Bill at this stage in this Parliament would be to lose it altogether.

However, the existing victims of negligence and worse have a strong moral claim. In some respects it is even stronger if Section 10 is to go. The honourable Member in another place who promoted this Bill suggested the establishment of a fund to compensate past victims of negligence and worse than negligence. As I say, that should now be seriously considered. Those who are exposed to risk in working for the state have a strong claim to be compensated by the state for injury.

Finally, one cannot overlook the fact that, as the Explanatory Memorandum states, there will be financial and public service manpower effects from the Bill. I suspect that it will impose a considerable extra burden on the Treasury Solicitor's department. At this stage it is entirely appropriate to say that all government departments are very well served by the Treasury Solicitor's department. The skilful and careful way in which that department deals with claims is an object lesson to many lawyers in private practice.

Unless and until we have in this country a system of no fault liability, as has been said, compensation for personal injuries is and will be a lottery. If it does nothing else, this Bill allows the servicemen and servicewomen of this country an equal place in that lottery.

9.6 p.m.

Lord Swinfen

My Lords, I am sorry for not having put down my name to speak in the debate. I had no intention originally of speaking but there is one small point on which I am not entirely clear and perhaps when my noble friend answers at the end of the debate he can clarify it for me.

It is absolutely essential that our forces are properly trained. Should there be an accident, are servicemen responsible for training others likely to be personally liable or will the services pay the claims? If they are to be personally liable, they will need to be properly insured and a proper scheme will need to be brought out. If they are going to be personally liable they may be frightened to make the training realistic and we could end up with poorly trained services.

9.8 p.m.

Lord Graham of Edmonton

My Lords, I shall begin by saying how very much I appreciate the manner in which the Bill has been presented to your Lordships' House by the noble Lord, Lord Gisborough. We are very indebted to the Government for their recently announced decision to promote something along the lines of this Bill and to amend Section 10 of the 1947 Act. We are also entitled to place on record our appreciation to the honourable Member for Davyhulme, Mr. Winston Churchill. When one follows these matters one appreciates the care and sympathy that he displayed in another place. He certainly deserves our congratulations.

I also remind the House that I am no stranger to this issue. In your Lordships' House on Monday, 19th May, I attempted in the Committee stage of the Armed Forces Bill to introduce exactly that matter about which we are talking tonight. I appreciated at the time, on advice from the Table, that perhaps it was not strictly in order to do so, but the generosity of your Lordships' House on that day allowed a debate to take place. It was in that debate that the noble Lord, Lord Trefgarne, said in Hansard, at col. 14 on 19th May, that a review was taking place, the outcome of which we are debating tonight.

We are trying to redress grievances. There can he no greater grievance than that of any person who believes that as a class of person he is being treated differently from another class of person. One of the arguments that has been put forward has still not been answered; that is, that there are classes of public servants, such as firemen and policemen, who have the right to sue in court, despite the way in which their terms of pay and conditions allow them to receive compensation. The Bill seeks to make sure that the serviceman who has been injured and the relatives of a serviceman who may have been tragically killed will, if they are 'not satisfied, have recourse to the courts in order to get their grievance put right. That is a proper principle.

The noble Lord, Lord Gisborough, quite properly drew our attention to the words of a former Attorney-General, the noble and learned Lord, Lord Shawcross, who said in 1947: 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.". It is a strange coincidence, but on 6th May 1944—that is, one month before D-Day—I took part in a live ammunition exercise in preparation for D-Day. A terrible accident happened in which two of my colleagues were killed and I finished up on the side of Llanberis at the foot of Snowdon with my guts in my hands. I had been shot through the back with a Bren gun. That was a terrible accident and it certainly took me out of the major action on D-Day. That accident in peacetime would have merited anyone, let alone myself, considering that he had a grievance. Yet, without the amendment to the Bill, that grievance could not be pursued. At least the Bill, as it is at present constituted, will provide a serviceman who, in the light of the need to be adequately trained and properly aware of the dangers of battle has a terrible accident in training, with the right to sue.

Of course he will not sue another serviceman. I do not accept that difficulties arise of a serviceman suing another serviceman. He does not sue the Crown. but the Crown pays. One cannot sue the Crown in the court because the courts are the Crown courts. However, as has been said in another place and in your Lordships' House, the Ministry of Defence stands behind any serviceman who may be the person who has to be sued for negligence. When the compensation is allocated, it is not the individual who pays; it is the Crown. That was said in precise terms by my right honourable friend the Member for Stoke-on-Trent, South, Mr. Jack Ashley.

What I find unacceptable is that the whole raison d'etre of what we are talking about relates not to the future but to the terrible tragedies of the past. The noble Lord, Lord Gisborough, asked: where does one draw the line? It is difficult. The line was drawn precisely in an amendment moved by my honourable friend Jack Ashley in another place at the date when the 1947 Crown Proceedings Act came into being. I know that there will always be problems about having the right to prove a case, papers not being available, witnesses who cannot be found and people who have died. But if the House is looking for a better solution than starting on 8th December 1986, the solution was provided in that amendment.

Like the noble Lord, Lord Meston, whose speech I appreciated, I do not see any easy outcome. It is not black and white. But I have the memory of what I have just told the House was my own experience, and I certainly think that the Minister and his friends are entitled to reflect very seriously indeed before they say—and I hope they do not say it tonight, because we have not yet reached the Committee stage of the Bill—that they are not prepared even now to amend the Bill.

As the noble Lord, Lord Gisborough, pointed out, things have moved on in the last 40 years. Who would have foreseen the easements in Crown immunity which are coming about? Crown immunity has been removed from hospital kitchens. I see the noble Lord, Lord Winstanley, in his place. He had a great deal to say about that. Such matters were more or less unable to be debated and were unheard of. We now have the question of Crown immunity in the case of our prisons. Certainly the noble Lord, Lord Glenarthur, will be much better equipped by his previous incarnation than any of us to know about the state of the interior of our prisons. So we are now in a good situation where matters are being eased.

I may be asked: can you not be satisfied with what has been offered? I can be satisfied, but I should like to get a little more. Having met the Section 10 group, their terrible cases are etched on my mind and I ask the Minister and his advisers to think hard even now. I believe that they will benefit the House and a great many of those outside if they give us some assurance.

I do not have a great deal more to say. There is no dispute that many good things are being done. The Bill should receive a speedy passage, but it can be improved. If I am asked about the cost and about retrospection, I would say that this Government do not hesitate to legislate retrospectively on issues from which they believe they will profit. There are Bills of a local government nature going through the House at this moment which take retrospective action. Do not raise the principle of retrospection. It happens very rarely. It does not happen easily or lightly, but it can be done. I believe that it should be done for the tragic individuals and their families who have suffered not by their own negligence but by the oversight of members of the armed forces. I give the Bill a very warm welcome, but I say to the House that the opportunity will be presented to it to make it a better Bill than it is at the moment.

9.18 p.m.

The Minister of State, Scottish Office (Lord Glenarthur)

My Lords, I, too, should like to congratulate my noble friend Lord Gisborough on the very clear way he has introduced this Bill and to thank him for sponsoring in your Lordships' House such a worthy measure which was piloted so ably in another place. Let me confirm immediately that the Government support the Bill wholeheartedly and hope that it might secure a very swift passage into law.

The whole question of the way in which Section 10 of the Crown Proceedings Act 1947 has operated broadly to prevent actions alleging negligence being brought by servicemen or their next of kin, who are injured or killed in circumstances attributable to their service, has been the subject of intense interest and debate inside Parliament and outside for a considerable time. The Government are conscious of the strength of feelings expressed—and indeed the noble Lord, Lord Graham of Edmonton, has given personal experience to illuminate this—by those who have believed that the law should be changed. That is why we set up in October 1983 an inter-departmental working group to review the operation and effects of Section 10. That review was a major task. It was necessary to approach the problem most carefully and objectively so as to ensure a proper examination of the complex legal and administrative issues involved and then analyse the options which were identified.

As my noble friend Lord Trefgarne told your Lordships when we debated the Armed Forces Bill a year ago, the Government were anxious that we should not be rushed into the wrong solutions by calls to speed up this very comprehensive inquiry. That is why it took a little time to arrive at a reasoned and balanced conclusion. That conclusion was announced on 8th December last year by my right honourable friend the Secretary of State for Defence. He confirmed the Government's decision to repeal Section 10 of the Crown Proceedings Act 1947. I am glad to say that the general response to that decision has been overwhelmingly favourable.

This Bill, which was introduced to give effect to the Government's proposals, has received a wide measure of all-party support in another place. It will also be welcomed, I am quite sure, by those members of our armed forces who will in future benefit from its provisions, because as my noble friend so rightly said, the Bill seeks to provide servicemen and servicewomen with the same right of access to the courts to sue for damages for death or personal injury suffered in the course of their employment in peacetime as their fellow citizens have long enjoyed.

Having heard Lord Meston's remarks I think that those of us who have served in the armed forces will be able to produce further examples similar to those which he gave. He suggested that it may be possible to set up a fund. I am not convinced that that would be the right way to proceed. Claims would have to be considered on an ex gratia basis, if that course were to be adopted. My right honourable friend the Secretary of State for Defence explained in December last year why legislation to repeal Section 10 could not be retrospective, and I shall return to that point later. There would also be serious practical difficulties attached to the introduction of an ex-gratia scheme for past cases. In the circumstances in which Section 10 applies, servicemen have never been able to sue the Crown for personal injury, although before the 1947 Act they could sue each other. There would therefore be no logical cut-off point for considering claims and wherever a line was drawn there would always be some cases which fell on the wrong side. Furthermore, some past cases would be impossible to assess because the necessary documentation, evidence and witnesses would no longer be available.

That is why I think that the proper way to proceed is through modification and amendment to the existing system of benefits, and we shall ensure that that is done. As the noble Lord quoted the example of a service doctor perhaps amputating the wrong leg, I can say that where a serviceman believes that he has suffered injury as a result of negligence by another serviceman in the execution of his duties, he is now able to pursue a civil claim for damages. As regards the question of whether a serviceman is able to sue a service doctor for medical negligence, the answer is yes. Moreover, what I have just said in relation to the question of the serviceman now being able to sue senior officers also applies because in most cases the doctor would be the senior officer, so the two are tied together.

My noble friend Lord Swinfen was concerned that a soldier may be personally liable. Generally speaking, the case would be brought against the Ministry of Defence. A serviceman would not be financially at risk because if he was sued the Ministry of Defence would stand behind him. I think that provides the assurance which my noble friend was seeking.

My noble friend Lord Gisborough referred in his opening speech to the issue of retrospection of the Bill's provisions, and explained why the repeal of Section 10 cannot be made retrospective. That is the point which of course was taken up in large part by the noble Lord, Lord Graham of Edmonton. I have little to add to what my noble friend said on this matter as he explained the arguments against retrospection cogently and persuasively.

While I have listened, with considerable sympathy, to the noble Lord who has argued that we should legislate somehow to turn back the legal clock, to use my noble friend's words, and extend the provisions of the Bill to those, or their next of kin, who have been sadly injured or disabled, or even tragically killed, as a result of accidents in the past, I have to say that this just is not possible. As my noble friend Lord Gisborough has pointed out, it would be both wrong and unfair to impose the burden of legal liability retrospectively upon the shoulders of a serviceman for acts he may have committed in the past, irrespective of whether the Government as his employer stand behind him and pay the cost of any damages awarded against him. But to make this sort of legislation retrospective would, I suggest, create many new examples of unfairness and injustice, since the Ministry of Defence and ultimately the courts would be unable to assess properly where liability might lie, and the right level of damages to award, in those old cases where the necessary evidence is no longer available, and where peoples' memories of events have faded.

But there is already a satisfactory system in being to ensure that those unfortunate ex-servicemen and ex-servicewomen who have been injured in the past, and the dependants of those killed, are not left without any financial assistance; and my noble friend has mentioned the benefits which are payable on a no-fault basis to those who are eligible. I would suggest that these benefits payable under the armed forces pension scheme, taken in conjunction with the provisions available under the war pensions scheme of the Department of Health and Social Security, are fair and adequate; and this system of benefits will continue, so providing financial assistance where it is needed. That is why, while understanding the concerns expressed by the noble Lord, Lord Graham of Edmonton, there are enormous practical difficulties to doing what he suggests.

It is perhaps also worthwhile reminding the House that, as my right honourable friend the Secretary of State for Defence confirmed in his announcement on 8th December last year, special arrangements are being made with regard to claims resulting from accidents which occur between the date of the announcement last December and the date of enactment of this new legislation. Assuming they meet the necessary criteria, such claims for compensation, which would be accepted but for the continued operation of Section 10, are now being considered by the Ministry of Defence and dealt with on an ex gratia basis, although settlement of claims will be deferred until after enactment of the Bill. I am grateful for the comments of the noble Lord, Lord Meston, who referred to the Treasury Solicitor and to the Ministry of Defence claims department.

In conclusion, my Lords, I believe that the change in the law which this Bill seeks to introduce should be welcomed as a remedy to a situation which keeps the members of our armed forces at a disadvantage when compared with their fellow citizens. The review of the operation and effects of Section 10, which I mentioned earlier, pointed out certain anomalies which the Government recognised had to be tackled, and our conclusion is that the repeal of Section 10 is the only really satisfactory way to remove those anomalies. The measures sought by the Bill introduced by my noble friend will be warmly welcomed by the armed forces, and have already won the support of those in another place. I wish the Bill a safe and speedy passage onto the statute book.

9.29 p.m.

Lord Gisborough

My Lords, I should like to start by thanking the Bill's sponsor, as he has been thanked by many others, the Member for Davyhulme Mr. Winston Churchill, who gained a wide measure of support in another place for this Bill which he initiated. He effectively argued against many seductive suggestions for retrospection. I am grateful to the Government for their offer of ex-gratia payments back to December of last year. The Bill has been steered through unamended. I hope that it will be possible for it to be on the statute book in this Parliament.

I should like also to congratulate members of STAG—the Section 10 Abolition Group—who successfully campaigned for a long time for this measure. Their persistent pressure on the Government eventually, like water dripping on stone, had its effect and the Government agreed to this Bill. It is sad that so many of those STAG members who worked so hard will not be able to benefit from it.

I thank the Minister for his support and I thank all noble Lords who have spoken in this debate.

On Question, Bill read a second time, and committed to a Committee of the Whole House.