HL Deb 12 May 1987 vol 487 cc609-18

7.38 p.m.

Lord Gisborough

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 Gisborough.)

On Question, Motion agreed to.

House in Committee accordingly.


Clause 1 [Repeal of section 10 of the Crown Proceedings Act 1947.]

Lord Graham of Edmonton moved the amendment:

Page 1, line 9, leave out ("this Act is") and insert ("the Crown Proceedings Act 1947 was").

The noble Lord said: I beg to move the amendment standing in my name and that of the noble Lord, Lord Henderson of Brompton. For brevity, and I am sure for clarity, this is a plea for retrospection. The arguments have been well rehearsed. The Minister and I had a useful exchange. I was sorry that he was unable to be here last week, and I understand that, but we had rehearsed the arguments some 12 months before.

Let me say in his presence that I am grateful for the outcome of the review which took place and which finally led to the Government supporting the Bill that we have here. There is no argument from any quarter in this or the other House that the Government have acted not only properly but fairly and generously as to the future. I want that to appear on the record.

We are concerned not only to bring people into the scope of new legislation but about the omission of deserving people. It seems ironic that the case for the future is made on the evidence from the past. The case that has been accepted by the Government and their inquiry is that it is right and proper to provide serving members of the armed forces with the opportunity (if they so wish and believe that it is their best recourse) to go to the courts in order to obtain what they consider to be the best redress of a grievance.

There are dangers in doing so which must be weighed by the servicemen who feel so aggrieved and their advisers. However, there is a body of people whose experiences it would be too gruesome to read into the record yet again: they have already been read into the record in this House and in other places. In my view, the Minister ought not to rest wholly on the grounds that retrospective legislation is bad or inappropriate. He and a number of his Ministerial colleagues have not hesitated in this Parliament, and no doubt in other parliaments, to say that the circumstances of an issue at a particular time are right for retrospection. Here we are seeking to persuade the Minister to make the Bill effective not from the time that it is passed, which will be very soon, but from 1947.

On the face of this Bill there are various financial provisions under the heading "Financial and public service manpower effects of the Bill", and various sums are mentioned. I am not in a position to query them. The sums are not massive but at the same time I appreciate that they are considerable when one realises that prior to this Bill there were no provisions of this kind at all. I honestly say to the Minister and his colleagues that I hope that the Government, in the last few days of this Parliament, can find it within their heart to produce whatever further sums of money are required. One does not know, because even for the future the wording on the face of the Bill indicates the uncertainty in trying to calculate the sums for the next 10 years. Even if I am right, we are talking in terms of 13 million over the next 10 years. I have no idea what the amount will be in respect of the past 40 years.

In my view, the case was powerfully argued by my good friend Mr. Jack Ashley, and by Mr. John Cartwright and Mr. Denzil Davies. I believe that it was listened to sympathetically by Members all round the House. I know that there is anxiety in another place that the Bill should not be lost. It is certainly not my intention to do anything which will cause that to happen. I believe that those who have suffered—not merely those who have been injured but also their families and friends—are entitled to be given the opportunity to test in a court of law their right to more adequate compensation than that which they received previously under any other system and which the Government and the Minister have fairly told the House has been available to them. I beg to move.

7.45 p.m.

Lord Henderson of Brompton

I support the amendment moved briefly but comprehensively by the noble Lord, Lord Graham of Edmonton. I am sorry that I was not present at Second Reading but I read the debate with great interest. I feel very strongly that this Bill is entirely an all-party affair. Its provisions offer nothing but gain to the services, with one exception. The Bill creates what I shall say are three categories but which I believe should be one category. The benefits which are to be given under the Bill prospectively should apply retrospectively from 1947, as the noble Lord, Lord Graham of Edmonton, has said. At Second Reading the noble Lord, Lord Meston, who cannot be here today, effectively described that a friend of his had said that there were in a military hospital a number of soldiers who had suffered similar injuries during military service. They received three different kinds of compensation from three different funds. There was also the possibility of a fourth soldier who may have had the wrong leg amputated by a doctor and he would have been compensated, if at all, in yet another way.

To my mind the Bill creates three further categories. For anyone who has suffered any injury, categorisation is pretty horrific. The noble Lord, Lord Meston, described the soldiers in a hospital. I remember that in the old days it was unthinkable that a soldier should have a right of action for negligence in respect of military service. Soldiers who had no right of action were in hospitals with those who had been injured in civilian life. Some received large compensation, some little compensation and some none at all. The unfairness of life came home to the soldiers when they mixed with civilians in a way which had not struck them before.

The way in which opinion changes is illustrated by this Bill. It is a reversal of what we had all previously thought and I think that today we are all happy about it. The categories into which the Bill divides people are, first, those who benefit under the Bill as drafted and will receive its benefits after Royal Assent. They will have a legal entitlement to sue for negligence. Secondly, there are those who benefit on an ex gratia basis under the special arrangements being made in regard to claims between 8th December 1986—which is the date of the announcement of this legislation—and the date of Royal Assent of the Bill in 1987. Thirdly, there are those who are denied the benefit of claiming because their claim dates between 1947 and 1987.

I believe that justice is clearly not being done between those three categories of servicemen and that we ought to be doing something to put it right. Mr. Jack Ashley moved that proposal in the House of Commons. During the debate in Committee I think that the argument was hardly countered by anyone present. It was only the vote on party lines which made his effort unsuccessful.

The amendment is being repeated today. It may be that for some reason or another, which I cannot understand, the noble Lord, Lord Gisborough, does not feel able to accept the amendment because it might not be agreed to in the House of Commons. There seems to me to be no argument on that matter because this is non-party business and I feel sure that the amendment will be agreed to without controversy. However, if that opinion is taken by the noble Lord, Lord Gisborough, and the Minister, I suggest that three courses are available. The first course is that which has been advocated by the noble Lord, Lord Graham of Edmonton, and myself—and which I think is by far the best case—and it is to accept the amendment.

If that course is excluded there is the suggestion of the Member in another place who introduced the Bill, Mr. Winston Churchill, of establishing a fund to compensate victims between 1947 and 1988. I think that that is worthy of consideration but a limited fund might well not be the answer.

The third alternative—and perhaps this is the one which is really viable and which I would recommend to the Committee if the amendment of the noble Lord, Lord Graham of Edmonton, is not acceptable—would be to extend the ex gratia proposal which has been put forward by the Secretary of State in another place in respect of those who are affected since the date of the announcement on 8th December last year until Royal Assent to the Bill this year so that the provisions he is going to make for them to have ex gratia payments in respect of admissible claims should be extended further back from 8th December last year to the date of the passing of the Act in 1947. If that were done I should be entirely happy and this unfortunate division of servicemen into three categories would be eliminated. I think that is second best, and with those words I should like to support the amendment put forward by the noble Lord.

Lord Winstanley

I am most grateful to the noble Lords, Lord Graham and Lord Henderson, for bringing forward this amendment, for a number of reasons. Like the noble Lord, Lord Henderson, I listened to the speech of my noble friend Lord Meston at an earlier stage of the Bill and I was much moved by the matters he described to us, as indeed I think were a number of your Lordships in all parts of the Chamber. I think I am right in saying that my noble friends on these Benches would all wish to see the adoption of an amendment like this or of one of the courses of action which have been referred to by the noble Lord, Lord Henderson, because we believe that this is something which should be done.

I am also glad that this amendment has been brought forward at a very late stage in this dying Parliament, in the knowledge of course that we may not be able to make a great deal of progress with it for reasons which are understandable. I, like the noble Lord, Lord Henderson, would understand if the noble Lord, Lord Gisborough, who has done such excellent work in bringing the Bill thus far, does not wish in any way to imperil it. That would be understandable, though perhaps regrettable, because one hopes that some course of action could be found whereby difficulties could be avoided because of the timing.

I think it is perhaps a good thing that this amendment has been brought forward, if only to demonstrate that your Lordships' Committee genuinely tries to do its very best on matters of this kind. I have always been told that this is a revising Chamber. When I sat for about half an hour during the proceedings on the Criminal Justice Bill earlier and listened to the Committee revising some 120 amendments in about 25 minutes, it seemed to me that the scrutiny we were giving them was not perhaps quite as close as the general public might have been led to believe. However, I think it is important that we do not allow the Bill to go further without making the points that have been made by the noble Lords, Lord Graham and Lord Henderson. It is a matter on which there is all-party support in both Houses of Parliament. I too have read most carefully the speeches of Mr. Jack Ashley, Mr. Cartwright and others, and it seemed to me that the general mood was that something of this kind ought to be done.

The noble Lord, Lord Henderson, outlined three possible courses of action. I and my noble friends on these Benches would undoubtedly prefer the first of those courses and we see no serious obstacles to its adoption; namely, the acceptance of this amendment. But if that cannot be done for reasons which we would understand, I hope that the opportunity will be seized for adopting one of the other two courses.

The Minister of State for Defence Procurement (Lord Trefgarne)

I wonder whether I might intervene at this moment to indicate where the Government stand. I am afraid I must tell the Committee that it would be quite wrong to try to make the repeal for which this Bill provides retrospective in the way that is proposed in the amendment moved by the noble Lord, Lord Graham, and supported by the noble Lords, Lord Henderson and Lord Winstanley. I am afraid the Government are unable to agree to what is proposed.

The reason why retrospection would be wrong was clearly stated by my noble friends Lord Gisborough and Lord Glenarthur last Wednesday when your Lordships gave this Bill a Second Reading. In view of their importance, perhaps I should repeat them briefly. First, there is the general presumption that legislation is for the future and not for the past. Secondly, although the noble Lord, Lord Graham, referred last week to examples of where the Government, in his view, had legislated retrospectively on issues favourable to them, nevertheless, I think, with respect, that he may have missed the point and failed to distinguish between legislation which might confer retrospectively rights and benefits on individuals and legislation which, under his proposal, would impose retrospective legal liability upon individuals for their actions.

Surely it would be both wrong and unfair to turn back the legal clock and impose upon service personnel, who need not now concern themselves over the possibility that their acts or omissions may give rise to civil actions, legal liability for their past actions, even though the Crown as their employer might relieve them of any financial risk by settling claims and paying the damages awarded by a court. What about those former service personnel, long since retired, who might have to be told that they will need to shoulder the burden of civil liability for what they did so many years ago?

Perhaps I can illustrate this point by hypothetical example. The noble Lord, Lord Graham, had a distinguished war service in the Royal Marines, and he told your Lordships about it last week during our consideration of the Bill on Second Reading. I was sorry to learn that he was badly injured during his service. Suppose that he had been transferred from the Royal Marines into the Royal Army Service Corps in the year just after the war, say, after the Crown Proceedings Act was passed in 1947. Let us further suppose that an army vehicle he was driving had overturned, injuring a passenger who was an army comrade. Under the terms of Section 10 of the 1947 Act, as we have heard, the driver would be immune from legal liability for his actions, and perhaps his negligence, in causing the accident and would probably have forgotten all about the incident.

Under this amendment the noble Lord would now have us turn back the legal clock some 40 years and say to that driver, "You are now legally liable for your actions so long ago". Although the Ministry of Defence will pay the cost of any claim which that driver's injured passenger might now make in respect of the injuries he sustained all that time ago, nevertheless, formal legal liability and all that that entails would lie for ever on the shoulders of the driver of that vehicle. It might even mean court appearances if a writ is issued. Is it fair or reasonable to turn back the clock in this way and make such a serviceman or ex-serviceman legally liable for what he may have done so long ago? I believe it is not. Does the noble Lord wish to intervene?

Lord Graham of Edmonton

I shall wait until the Minister has finished.

Lord Trefgarne

Thirdly, I know that the noble Lord, Lord Graham, acknowledged in your Lordships' debate last week the practical difficulties that could be encountered. It must be recognised that the imposition of retrospective provisions would create severe problems and would lead no doubt to many examples of unfairness, since the Ministry of Defence, and ultimately the courts, would be unable to consider and properly assess those old cases where the necessary evidence and witnesses are no longer available. Even in comparatively recent cases of death, injury or illness, prospective claimants will not have considered the possibility of raising a common law claim because of the bar established by Section 10 of the 1947 Act. So material evidence, essential when pursuing a claim through the courts, may well have been lost.

I turn now to the question of a possible regime of ex gratia payments. We have dealt at some length with the question of whether the Bill should contain provisions to make its effects retrospective, and I have endeavoured to explain the Government's view. But I should perhaps remind the Committee—certainly the noble Lord, Lord Henderson, acknowledged this—that when my right honourable friend the Secretary of State for Defence announced on 8th December last the Government's intention to repeal Section 10, he made it clear that he would consider claims arising from incidents which occurred from that date, not on the basis of legal liability, since the existence of Section 10 would prevent that, but on an ex gratia basis.

I can confirm that the Ministry of Defence is now dealing with a number of claims on that basis and that this interim scheme will continue to operate in respect of deaths, illnesses or injuries resulting from incidents in the period of time between the Government's announcement last December and the date of the Bill's enactment. It has been suggested by some noble Lords and indeed by others outside your Lordships' Chamber that by somehow extending the ex gratia scheme back in time beyond the date of the Government's announcement in December, we might thereby be able to help those who suffered illness or injury before December.

I am afraid that that approach is not a practicable one. I ask those who would argue for an ex gratia scheme for dealing with past cases where the cut-off line for considering old claims would be drawn. Whatever line was drawn would be totally arbitrary and some claims would always fall on the wrong side of it. Furthermore, the same consideration would apply to dealing with old claims on an ex gratia basis as to dealing with them within the framework of retrospective legislation. Many old cases would be impossible to assess because the evidence and witnesses are just not available. How would Parliament be able to justify the establishment of such a system that is riddled with potential injustices and unfairness?

It would be unfortunate if our early approval of this very valuable measure were to be clouded by consideration of how, in an ideal world, we might assist further those individuals who are suffering from the effects of accidents in the past. Whatever criticisms might be levelled at the provisions of this Bill, it is worth pointing out that there is a good system of financial benefits available to ensure that those unfortunate ex-servicemen and ex-servicewomen who have been injured in the past and the beloved dependents of those who have been so tragically killed are not left without any form of assistance.

The system of automatic payment of disability and pension benefits will continue to operate with those eligible being entitled to lump sums and, where applicable, annual pensions. These benefits are linked to the retail price index, are largely tax free and do not involve the hazards and expense of the individuals concerned having to resort to the courts in litigation. Despite the fact that those people who were injured before 8th December last will not be able to pursue claims for common law damages, we have an adequate system for meeting the needs of those concerned. We shall continue to review that system of benefits to ensure that they remain adequate for the needs of those involved.

The Committee will, of course, wish to consider this amendment on its merits. However, it is my duty to inform the Committee that if the amendment is accepted there will be no prospect of this Bill receiving the Royal Assent in this Parliament. Although the Government fully support the Bill, I am unable to give any undertaking as to when such a Bill would find a place in the Government's legislative programme for the new Parliament. The choice before the Committee this evening is therefore between accepting the Bill as it stands, and it commands a broad measure of support and will be widely welcomed as a genuine reform for the benefit of our servicemen, and losing the Bill with at best uncertainty about the timing of its reintroduction.

The Bill introduced by my noble friend Lord Gisborough deserves swift pasasge in what remains of this Parliament. I commend it most strongly to the Committee as it stands. I hope therefore that the noble Lord will not press his amendment.

8 p.m.

Lord Gisborough

It is easy to have a lot of superficial sympathy for the amendment that has been moved. On the face of it, we should all like to have retrospection if possible. But it has been fully explained how totally impracticable that would be. There would be the problem of a lack of witnesses, who may have died or dispersed. And even if witnesses were available, their memory of events that happened so many years ago would be very faulty and the decisions reached by boards would bear no relation to the facts at the time.

I support the remarks of my noble friend the Minister. This Bill is needed and has universal support. It would be a great shame if it were lost by virtue of an amendment being carried, that would kill it for the Session and perhaps for a long time. I hope that the proposers will feel able to withdraw their amendment.

Lord Graham of Edmonton

I should like to begin by recognising immediately the seriousness and significance of the Minister's remarks that although we appear to have a choice, in effect, we have no choice at all. Like many of those who have spoken in this discussion and in another place, I appreciate the enormity of the step that the Minister took on 8th December last year. No one will lose sight of that.

We were hoping to build upon it. The Minister says that if we seek to do so and succeed, in effect we shall kill the Bill. Certainly, I am not willing to do that. However, the Minister needs to reflect seriously upon his conception of an adequate system for those who suffered an injury before 8th December and on what his ministerial colleague said last week was a satisfactory system.

This morning I received a letter from Mrs. Carol Mills, who is the secretary of STAG (Section Ten Action Group) and whose name is well known in relation to this issue. She says: It distresses me more than I can say that, as far as the severely disabled members of STAG are concerned, the existing pensions and awards"— that is the adequate system— should be considered satisfactory. If it were true, they would not have felt it necessary to campaign so vigorously for the repeal of Section 10 and the Government would certainly not have agreed to It. There is a difference between us, and a dilemma. I can well understand the Minister feeling that the system is satisfactory. He has enormous responsibilities. But I am not speaking on behalf of the Ministry. I am speaking on behalf of the people who have been injured or maimed and whose lives have been wrecked. They take a different view. We are seeking to persuade the Minister and the Government that their claims are sufficiently strong at least to allow them to be tested in a court.

The Minister is absolutely right that after 40 years it will entail great difficulty. But it will be their great difficulty and not that of the Ministry. When the Minister defends the nominal individual who has to face the court—I shall come back to his remarks about that later—there will, of course, be problems. There will be problems in any case, apart from problems of trying to find evidence, documentary or personal. There would be problems after four years, let alone 40 years. Of course the difficulty is enormous. But we are seeking to ensure the principle of having the right to do it.

Fair and kind comments were made by the Minister about my experience in 1944, which I described to the House last month. But what about the poor man who years ago was involved in a terrible accident? No finger of blame was pointed at him at the time, but he then finds that 40 years later he is summoned to court and charged with negligence of a terrible kind. I venture to suggest that, faced with the knowledge that someone has suffered for 40 years as a consequence of an accident in which he was involved, that man will be able to relieve his mind of the burden of responsibility because he was acting within the services. I think that he will be somewhat satisfied that after 40 years the damage that was done has been compensated and the grievance that was suffered has been redressed.

We are discussing hypothetical cases, but I imagine that someone who has been proved liable in a court of law will be aware that the injuries suffered can never by put right by a sum of money, whatever that sum is. I think that he will find it easier to live with his conscience if it has been assuaged by a decision of the court.

The Minister asked where one draws the line. He drew the line on ex gratia payments as of tonight or of tomorrow or when this Bill becomes an Act. He drew that line at 8th December when he made the announcement. If that announcement had been made a week earlier one assumes that fewer people would have been affected. We suggest that the line should have been drawn at the date when the previous Act was passed. We understand that 40 years constitutes an enormous length of time but all the evidence that we have does not concern what happened to people after December 8th or will happen to them after 22nd May. We have evidence of what happened to people before December 8th and after 1947.

But I take what the Minister has said and, whatever else other people may say, I am satisfied. I know that the Ministers responsible, not merely the Minister who has taken the Bill through this place but the Minister in another place, Mr. Freeman, listen very attentively and deserve the gratitude of many people. In the future, those people will be able to rely upon this repeal to get their redress.

Certainly no one has come out of this in bad odour. I understand the problems of the Government, and I simply say that I hope that Parliament will be able to find some means in future to add an additional veneer to the Bill, which I wish well when it gets on to the statute book. That veneer is one of compassion and mercy of people who have suffered through no fault of their own and who will continue to suffer in the future, not from a hurt but from a grievance and from a bitterness that they have not got their justice. Unless anyone else wishes to speak, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 1 agreed to.

Remaining clauses agreed to.

Title agreed to.

House resumed: Bill reported without amendment. Report received.

Then, Standing Order No. 44 having been suspended (pursuant to Resolution of today's date), Bill read a third time and passed.