My Lords, I have listened with care to the remarks advanced by noble Lords in relation to this proposed amendment. At the outset, may I note and associate myself with remarks made by noble
Lords as to the tenor of the speech introducing this part of the debate by the noble Lord, Lord Thomas of Gresford. This seems to me, drawing on my short experience in your Lordships’ House, to be of a kind with contributions which we hear from that source, from the noble Lord, Lord Thomas of Gresford, concerned as it was that the principles which underpin the legal systems in the jurisdictions of our United Kingdom should apply universally, irrespective of whether claimants are British subjects or not—underpinned also by that confidence in the ability of our courts and our system to do justice among all forms and manners of people.
In considering this amendment, I note that we have already discussed first of all the three factors that this Bill is introducing which the courts must consider and to which they must have particular regard when deciding whether to allow claims connected with overseas operations to proceed after the primary limitation periods have expired. I will not rehearse the arguments that I have already made as to why we are introducing these new factors, though I will necessarily, in answering your Lordships’ points, touch upon them.
However, the additional factor that these amendments propose to add is not, I submit, necessary. That is not because it is not right for the courts to consider the importance of proceedings in securing the rights of the claimant—of course it is—but because this is already something that the courts will take into account when they consider whether it is equitable in all the circumstances to allow a claim to proceed. The court would inevitably be assessing the right of the claimant in determining whether or not an extension to the time limit should be granted. The additional factor in terms of the amendment proposed does not enhance the policy aim of the Bill, which is to help provide service personnel with greater certainty. It would however, I submit, increase legal complexity in a way that is unnecessary.
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The noble Lord, Lord Thomas Gresford, the noble Baroness, Lady Chakrabarti, the noble Lord, Lord Hendy, and the noble and learned Lord, Lord Falconer of Thoroton, in particular were concerned that the Bill as framed may risk presenting the appearance of bias in favour of the Ministry of Defence against an individual claimant. I suggest that it is better to look to the rationale behind the measures proposed in the Bill and the reflection that, unlike domestic litigation, litigation arising out of overseas operations should reflect these three factors which do bear on overseas operations in a manner in which they do not in a domestic context.
I am also grateful to the noble Lord, Lord Hendy, for his rehearsal of the terms of the legislation in the Human Rights Act and the Limitation Act 1980 and for his account of the case arising out of the tragic circumstances of the matter in Iraq, in which he represented a complainant. But I also urge on your Lordships the views of the noble Lord, Lord Faulks. These provisions do not place a trump card in the hands of the Ministry of Defence; rather, in my respectful submission, they do what noble Lords speaking in favour of the amendment have accepted must be done—they strike a balance. I submit that they create
a better balance by acknowledging the context of overseas operations, which otherwise do not appear in our legislation.
Because the amendment will risk introducing additional legal complexity and because the Bill as it stands seeks rather to redress the balance by acknowledging the circumstances of overseas operations, I urge the noble Lord to withdraw the amendment.