Mr.Gordon Downie (Hansard, 20 March 2002)

§ David Cairns (Greenock and Inverclyde)

Before moving into the substance of my contribution, I hope that you will indulge me, Mr. Taylor, if I make two preliminary and vital comments.

Today, British soldiers once again stand on the brink of active military service. The task that we have asked them to perform is crucial, and we know that it is highly dangerous. From the Balkans to Sierra Leone, from the remote mountains of Afghanistan to Northern Ireland, the men and women of our armed forces have shown without doubt that they are the finest in the world. Nothing that I say today can or will diminish the absolute respect that my constituent, Mr. Gordon Downie, and I feel for our armed forces.

My second preliminary remark is of equal weight. I am fully aware that today's debate comes with a price tag attached, and I am well aware of the pressure on the Ministry of Defence in its tough budgetary negotiations. It is time for the Government—I am happy to make this point in any forum—to increase the defence budget and defence spending if we are to rise to the challenge that the Prime Minister has set for us of fulfilling Britain's historic role as a leading world power.

Justice sometimes has a price tag attached to it, which is the case with my constituent Mr. Gordon Downie. The case is one of justice long denied that must be corrected, and a fair degree of recognition and compensation must be awarded. The case is complex; it went on for a number of years and involved several locations throughout the world. I hope that it will make it easier for you, Mr. Taylor, and the Chamber if I strip the case down to its bare essentials and give a brief chronology.

Mr. Gordon Downie is one of my Greenock constituents. His ambition as a boy was to join the Army, and he fulfilled it at the age of 16 when he joined up. He was given a medical, as is customary, and was passed fit to join the Army. In 1979, three years after he joined the Army, a medical examination revealed that he had a rare congenital deformation of his spine, which was diagnosed by the Army as a very gross congenital deformity of the upper-thoracic and cervical spine. At that time, the Army doctors who had discovered Mr. Downie's condition did not inform him about it. He received further postings and undertook a tour of duty in Northern Ireland.

In 1981, two years after the discovery of his condition had been withheld from him, Mr. Downie was on a tour of duty in Belize, and was injured during physical training exercises. A local doctor examined him and diagnosed a pulled muscle. At no stage were his medical records from the UK sought. Those records would have informed the local doctor that Mr. Downie had a congenital back condition that may have been damaged by the accident. Mr. Downie was told to return to his duty until his tour ended four months later.

Upon returning to Scotland, Mr. Downie collapsed due to the severe pain in his back. A doctor, who knew that Mr. Downie had that congenital condition, examined him and, realising that it had been exacerbated by the accident in Belize, recommended 132WH that he be discharged from the Army because he was unfit to continue in service. The Army did not comply with that recommendation and for a second time Mr. Downie's congenital deformity was not disclosed to him. The following year, 1982, Mr. Downie was promoted to the rank of corporal and posted to Cyprus where the pain in his spine caused him to collapse again. The local medical officer yet again recommended that Mr. Downie be discharged, but yet again that did not happen and, for the third time, a medical officer did not tell Mr. Downie that he was suffering from a severe congenital ailment that was being exacerbated while he remained in active service. Mr. Downie returned to Scotland and served as a section commander, but his condition deteriorated further and he was eventually discharged in 1983 at the third time of asking. Mr. Downie now has constant pain in his back, neck, left arm, the left side of his chest and his left leg and several doctors have told him that his condition is inoperable.

In summary, the condition was discovered in 1979 but not disclosed to my constituent. In 1982, it was recommended that he be discharged, but that did not happen and the condition was again not disclosed to him. The same thing happened in the following year. Three recommendations for discharge from the Army were required before it happened and during that time, Mr. Downie's condition deteriorated. Mr. Taylor, consultant neurosurgeon at the Southern general hospital, Glasgow, issued a report stating that 50% of his symptoms could be attributable to his spinal congenital abnormality and 50% could be attributable to the injury suffered in Belize. It is unlikely that he would have developed symptoms to the current level of severity if he had not sustained such an injury. As the House knows—and I am sure the Minister will remind us when he replies—because the events occurred before the Armed Forces Act 1986, Mr. Downie, as a serving member of the Army was not legally able to sue the armed forces. He acknowledges and accepts that and there has been helpful correspondence from the Minister. However in recent months, the Human Rights Act 1998 was introduced in United Kingdom law and has opened a window of opportunity for people such as Mr. Downie who suffered accidents before they were able to pursue claims against the Crown and the Army as their employer.

Mr. Justice Keith ruled in the High Court that the law barring legal claims by veterans injured through negligence—I contend that that applies in Mr. Downie's case—before service men won the right to sue clashed with the Human Rights Act 1998, which guarantees the right to a fair hearing. It is worth noting that civilian employees of the Ministry of Defence have always had that right and I have personal knowledge of civilian employees being given compensation for asbestosis when such compensation was denied to the men and women of our armed forces.

A declaration of incompatibility has been issued and we await further cases. We must wait for a test case to pursue the matter to its conclusion because my constituent is not a wealthy man. He is not part of a large group such as a veterans association, which might support his case. He simply does not have the financial 133WH means to pursue a test case through the courts and must rely entirely on those who may be able to pursue such a case and on the outcome of that case.

This is a matter of fundamental justice. This gentleman is suffering because of negligent diagnosis, failure to inform him of his condition, and failure to act on the clear recommendations and medical advice from the Army's own medical officers, which resulted in his condition deteriorating and being exacerbated. In a letter to me about a month ago, Mr. Downie wrote: I only wish disabilities could change the way that this Act does, as my disability is as real now as it was in 1983. That is the point. It does not matter whether someone suffered an injury before or after 1987. The pain and suffering are as real now as they would be if the person had suffered the injury after the Act was amended and they had been allowed to sue for compensation.

Mr. Downie's ability to work and move is limited, and his future earnings are certainly limited. He is entitled, as I believe my hon. Friend the Minister will point out, to an Army pension, but because 50 per cent. of his condition was diagnosed as existing before he joined the Army, the amount of pension to which he is entitled is also limited. That is unfair, as Mr. Downie clearly would not have joined the Army if his condition had been diagnosed or disclosed to him at the time.

We are talking about a man who has served his country well in difficult circumstances, not about one of the usual suspects, a troublemaker or someone who wishes the Army ill. We should listen to the words of Mr. Downie's commanding officer on his certificate of service:

Cpl Downie has unfortunately had to end a very promising career with the Army as a result of being medically downgraded. During his service he has proved himself to be a loyal, conscientious, trustworthy, cheerful and reliable NCO. He has shown great enthusiasm for his work and has adapted well to the variety of jobs he has been faced with. A likeable young man who has got on well with his contemporaries and who has been an asset to the Regiment. This man gave the best years of his life to the Army and is suffering as a result. He was a loyal, decent, conscientious and brave soldier and is not asking for the earth or for untold riches; he simply wants a degree of compensation to make up for the gross negligence of which he has been, and continues to be, a victim, and because of the suffering that he endures today.

The Minister may say that he has to discharge the law and that his hands are tied. I understand that, as does Mr. Downie. However, we need a resolution of the matter, not just for Mr. Downie but for those who are in a similar situation. I would be surprised if there were many other cases in which the negligence was so culpable and clear and had resulted so directly in continued suffering for an individual. I hope that this good and loyal soldier will receive the justice that he has long been denied and that, in due course, he will receive the pension to which I believe he is entitled as well as some degree of ex gratia compensation as recognition of his current pain and suffering.

§ The Parliamentary Under-Secretary of State for Defence (Dr. Lewis Moonie)

I am grateful to my hon. Friend the Member for Greenock and Inverclyde 134WH (David Cairns) for securing this debate on the case of his constituent, Mr. Gordon Downie, and the important issues surrounding his claim for compensation against my Department. My hon. Friend will recall that we corresponded on this matter last year. However, other than repeating the advice that I provided in that letter, there is little that I can add at present.

I understand that, in 1981, while serving in Belize with the 1st Battalion, Gordon Highlanders, Mr. Downie injured his back during physical training. He was subsequently, after the events outlined by my hon. Friend, medically discharged from the Army in January 1983. Our records show that he submitted a claim in May 1997, alleging that his medical discharge from the Army was a direct result of his accident in Belize and not a consequence of a congenital abnormality to his spine.

Notwithstanding the Limitation Act 1980, which provides that personal injury claims be made within three years of the date on which the cause of action accrued—the date of the accident—or three years from when the claimant knew, or might reasonably be expected to have known, certain specified facts, Mr. Downie is barred by law from suing the Ministry of Defence by section 10 of the Crown Proceedings Act 1947.

Before 1948, no individual could sue the Crown, because of the long-held principle that the Crown could do no wrong. We might discuss that at some stage in another forum, but that was the principle at the time. In 1947, legislation in the guise of the Crown Proceedings Act 1947 was passed enabling the Crown to be sued for acts of negligence. Section 10 of that legislation prevented service personnel from suing for compensation. Section 10 in turn was subsequently repealed by the Crown Proceedings (Armed Forces) Act 1987. Since then, service personnel have been entitled to sue the Ministry of Defence for compensation as a result of the Department's negligence and have had the same legal rights as any other employee against their employer or organisation.

When the Ministry of Defence receives compensation claims, they are considered on the basis of whether the Department has a legal liability to pay compensation. Where there is a proven legal liability to pay compensation, we do so. The amount varies according to individual circumstances, determined by common law principles. However, in the case of my hon. Friend's constituent, as the injury he sustained while serving in the Army preceded the repeal of section 10 of the Crown Proceedings Act, I am prevented by law from paying him compensation.

During the passage of the 1987 Act, the question of retrospection was debated and motions to allow present and past members of the armed forces to pursue claims against my Department for injury or death suffered in incidents since 1947 were moved, but they were defeated or withdrawn. The view that prevailed at the time was that there would have been no logical time to draw a line, short of trying to cover all incidents and all types of injury going back to 1947. To make the Act retrospective would create many new examples of unfairness and injustice.

135WH My hon. Friend said that he is aware that a former member of the armed forces suffering from an asbestos-related disease recently mounted a legal challenge the case of Matthews v. the Ministry of Defence. However, section 10 of the 1947 Act is incompatible with the European convention on human rights. The claimant alleged a breach of article 2, the right to life, and article 6, the due process right, of the convention. The case under article 2 was that, by exposing him to asbestos dust, the Crown was in breach of its obligation to take positive steps to safeguard his health. The case under article 6 was that, as section 10 of the Crown Proceedings Act is a blanket immunity, it deprives the claimant of his right of access to the court. The matter was heard in the High Court on 10 and 11 December 2001. Mr Justice Keith handed down judgment on 22 January 2002 in favour of the claimant.

The Department has secured leave to take this matter expeditiously to the Court of Appeal, where it will be argued strongly that there is a general presumption that legislation does not and should not have a retrospective effect, in the interests of legal certainty and the rule of law. It is also highly arguable that article 6 of the convention does not give new civil rights to claimants. In the case of service personnel who suffered injury or illness prior to the repeal of section 10, they had no rights until 1987, and therefore in relation to the Crown Proceedings (Armed Forces) Act 1987, claimants would have to argue that the 1987 Act, in giving them a right, was nevertheless deficient. Therefore, until such time as the higher authority has ruled on the case, my Department's position concerning the payment of claims preceding the repeal of section 10 of the Crown Proceedings Act 1947 remains unchanged.

My hon. Friend may recall that the question of retrospective legislation was referred to in the Official Report. The Solicitor General said:

The Government's policy before introducing a legislative provision having retrospective effect is to balance the conflicting public interests and to consider whether the general public interest in the law not being changed retrospectively may be outweighed by any competing public interest. In making this assessment the Government will have regard to relevant international standards including those of the European Convention for the Protection of Human Rights and Fundamental Freedoms which was incorporated into United Kingdom law by the Human Rights Act 1998."—[Official Report, 6 March 2002; Vol. 381, c. 410W.] My Department has no way of accurately predicting the number of claims, previously barred by law, that would likely be made if the Court of Appeal and ultimately the House of Lords were to uphold the judgment in Matthews v. the Ministry of Defence. As my hon. Friend will be aware from my correspondence 136WH of last year on Mr. Downie's case, the War Pensions Agency, which is now part of my rapidly increasing area of responsibility, makes provision for ex-service personnel suffering from injury or illness attributable to their service in the form of a war pension and associated benefits. War pensions are non-discretionary. They are not means-tested and are made on a no-fault, tax-free and retrospective basis. They are also uprated annually. In addition, most pension and related benefit rates vary depending on the degree of physical disability. They do not, however, reflect actual financial losses or hardships.

According to the War Pensions Agency, Mr. Downie has been in receipt of such a pension since the early 1990s and, following a recent successful disability assessment appeal hearing, his level of pension has increased. However, although not relevant in this particular case, my hon. Friend should note that in cases where a recipient of a war pension is subsequently awarded common law compensation, the level of war pension is abated by the War Pensions Agency in line with the principle of a claimant not being compensated twice for the same loss.

My hon. Friend will recall that in our correspondence last year he inquired about the possibility of Mr. Downie being awarded an ex gratia payment by my Department in recognition of his injury. As I explained in my reply then, except for two special categories of claim relating to injuries sustained by criminal activities overseas and accidental injuries sustained by service personnel voluntarily involved in research trials, it is my Department's policy to consider claims for compensation on the basis of legal liability. With the exception of those two categories, I have no discretionary powers to award ex gratia payments. As Mr. Downie's case falls into neither of the above categories, he is prevented also from receiving an ex gratia payment. I have looked at this very carefully and I can see no room for manoeuvre on my part.

I can assure my hon. Friend that his constituent, Mr. Downie, is not being denied any form of compensation to which he is legally entitled. As I have advised today, as well as in correspondence, my Department considers claims for compensation on the basis of legal liability. Mr. Downie is legally prevented from pursuing a common law claim for compensation. I am really sorry that I cannot be more helpful, but compensation legislation is unambiguous and its constraints cannot be set aside, no matter how deserving the case. I am afraid that there is nothing more that I can do at present.