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British Nuclear Test Veterans

Volume 502: debated on Thursday 10 December 2009

Motion made, and Question proposed, That this House do now adjourn.—(Lyn Brown.)

When I called for a debate on nuclear test veterans, I did so purely as a constituency MP. I wanted to highlight the case of a constituent of mine whom I have been helping for more than 11 years. I raised this case in Parliament just over seven years ago and I had hoped that the matter would have been resolved by now, but it has not.

My purpose in raising this issue is to persuade the Government finally to settle the case of the nuclear test veterans. I want them to show the same compassion, humanity and generosity that has characterised so many of their policies over the past 12 years, and to prove again their commitment to our armed forces. The families of nuclear test veterans are not convinced by that record, however. They believe that their husbands, fathers, brothers and grandfathers were expected to do something that was wrong, and something that we would not ask anyone to do now, which has badly affected their health. They also believe, rightly or wrongly, that the Government are unwilling to say sorry or to act as though they were sorry. For many years, they feel that the Government have had to be dragged kicking and screaming towards giving the veterans the recognition and recompense that they deserve.

I cannot judge whether the families are right or wrong on that. However, since news of this Adjournment debate came out, I have been contacted by lawyers acting for the families of nuclear test veterans, and they have made serious allegations about the Ministry of Defence’s approach. If true, something outrageous is taking place. If false, that raises serious questions about the integrity of those lawyers. I hope that the Minister will be able to reassure me that the MOD has been doing all that it can.

As I have said, I am raising this issue as a constituency MP, on behalf of a constituent. Shirley Denson is a remarkable woman who has suffered more than her fair share of misfortune. I first met Shirley as long ago as 1998, when she told me about the tragic life of her late husband, Squadron Leader Eric Denson. When he was just 26 years old, Flight Lieutenant Denson captained one of the three Canberra aircraft that were deployed to collect samples while flying through the mushroom cloud created by a 3 megaton nuclear detonation on 28 April 1958. It has been estimated that, while in the cloud, just 49 minutes after detonation, Flight Lieutenant Denson and his crew would each have been exposed to 13,000 rads of radiation.

Flight Lieutenant Denson was ordered to keep the plane there for six minutes. Because of a fault on one of the dosimeters, this was four minutes longer than the aircraft should have been inside the cloud. When the plane landed, the ground crew said that it was the hottest aircraft they had ever handled. Then, back on the ground, the crews would have been exposed to massive radiation fallout from the water that they drank, the fish that they caught and the food that they ate.

I understand the eventual total dosage that Flight Lieutenant Denson received could have been the equivalent of 40,000 X-rays. His vomiting started almost immediately and became so severe that he was forced to delay his return from the Pacific and to stay on in Fiji for a further three days. He was then told that his dosage had exceeded the legal limit and was sent home. He was not allowed to take part in further tests.

Even though Flight Lieutenant Denson was in obvious ill health, there were no medical checks or a medical follow-up on his return, and nothing was done to alert him of the probable cause of his progressive medical problems. Significantly, no mention was made in his medical records of his activities in the south Pacific in 1958. Given the sensitivity surrounding the tests in a period of global conflict that it is hard for modern Britons to comprehend, there were strict orders of secrecy and he did not discuss these events with anyone. His wife did not know the details of his high dosage of ionising radiation. Even though he suffered for many years with breathing difficulties, acute sinusitis, mood swings, anxieties and depressions, she knew nothing.

In obvious medical difficulties, Squadron Leader Denson ended his own life in 1976 at the age of just 44, after 18 years of pain and upset. He was the father of four children, three of whom were born after 28 April 1958. His health problems live on in these three children, who have all also experienced lasting health problems. Twenty years passed since his death, during which Shirley Denson brought up four daughters on her own. Then, in 1997, she was alerted to the latest scientific evidence about the Christmas Island tests and started her own investigations.

Slowly, Shirley began to learn the true effect of the radiation poisoning on her husband. She has had to fight to find out more. As I have said, she is a remarkable woman. She has faced difficulties at every turn. Officials have insinuated that her late husband was sickly and unbalanced from boyhood. They suggested that his suicide was somehow inevitable and had nothing to do with Christmas Island. But she has pointed out that her husband was pronounced among the fittest of his peers and was an expert pilot. He was a proud Yorkshireman, as proud as any before him, who joined the RAF because he wanted to serve his country, and was a credit to the squadron that he would eventually lead. Mrs. Denson has gathered a great deal of expert support. Most bluntly of all, one medical officer told her, “From the moment he flew into that cloud he was a walking dead man.”

Since then, a study of the genetic status of New Zealand veterans, carried out by Dr. Rowland and his team at Massey university, has shown a very high frequency of translocations in the chromosomes of veterans. Dr. Rowland has made a very convincing case that the probable cause is exposure to radiation at nuclear tests. His report was wholeheartedly endorsed by a cross-party parliamentary inquiry two years ago. As a layman, it is hard to see how someone who was at or near the nuclear tests could not have experienced radiation or ingested it through the food they ate, the water they drank or the air they breathed. It is hard to see how this could not have led to health issues later in life, or to genetic changes affecting their descendants.

I am not a scientist; I am a constituency MP. Seven years ago, I spoke in the House to ask for justice for Eric and Shirley Denson. I hoped that progress would have been made. I hoped that there would be an apology for the families of these service men, who unquestioningly and courageously followed orders—perhaps something that said, “We would not do anything like this again, and we are sorry for the suffering it has caused.”

I had also hoped that people such as Shirley Denson would have received a modest recompense. Nobody wants to bankrupt the MOD; we just want something to provide some comfort to the families and to allow them to start to draw a line under the whole affair. But here I am again, seven years on, and the opportunity that the Government had to appear magnanimous and generous seems to have passed them by.

Millions of pounds have been spent in the courts and not a penny has reached the families of those who have suffered. Ministers have repeatedly said that they want to offer veterans and their families a settlement, but years and years and years have passed by, and so have many of the veterans themselves. They have not lived to see the apology or recompense they deserve.

Currently, more than 1,000 veterans and their families from all over the Commonwealth are bringing a group action case against the Government. Earlier this week, their legal representative asked to see me to give their side of where we had got to. The lawyer told me that the Ministry of Defence had chosen to defend the claim not on the grounds of whether the detonations had caused suffering, but on the grounds that the veterans had made their claims too late. There is a limit of three years after an injury has been discovered in which a person can make a claim for personal injury, and the MOD’s lawyers chose to base its defence on the case being out of time. That is called a limitation defence.

Whether such a defence is correct within the law or not, it appears to a layman to be a very mean defence. Instead of looking at the merits of people's actual claims, the MOD seems to be saying that it would not pay out because people had missed an arbitrary three-year deadline. I still do not know why anyone with an underlying desire to settle would use a defence of limitation. I simply do not get it. In public relations terms, it is a disaster. At best, it looks like a way of delaying pay-outs. At worst, it looks like a way of slithering out of taking responsibility for something for which one really is responsible.

In June this year, Mr. Justice Foskett made a judgment that largely rejected the limitation defence. His ruling is disputed but, as I understand it, he used his discretion and ordered all parties to forget about limitation and just reach a settlement. He said:

“The Government is, of course, pledged to settle legal cases by alternative dispute resolution in all suitable cases whenever the other party agrees to it. In my view this is such a case.”

He also ordered the Government to pay millions of pounds in costs to the veterans’ lawyers. What has happened since is a matter of disagreement.

My hon. Friend the Minister, in a written answer in Hansard, said that

“genuine negotiations have taken place between the parties respective counsels and a settlement proposal was made by the Ministry of Defence, although I cannot disclose the amount. To date, no response has been received from the claimants’ counsel or the law firm representing them (Rosenblatts). This is obviously disappointing, but we remain open to meaningful discussions.”—[Official Report, 7 December 2009; Vol. 502, c. 98W.]

However, the public affairs firm working with the lawyers has written to me, stating:

“The MoD say...that they have not received a response from the claimants counsel to the proposed settlement offer, but this is because we have never received such an offer.”

I understand that my hon. Friend has said that the contents of any settlement proposal cannot be communicated without breaching a confidentiality agreement. However, the fact is that Shirley Denson does not know the contents. There are more than 1,000 claimants, and they do not know the contents. It seems ridiculous that there can be any negotiations when nobody involved knows what they are. How can my constituent be sure her interests are being taken into account by the Government or by her lawyers when all proceedings are taking place in private? How can anyone know for sure that this Government have as their central aim doing their best for our veterans while everything is clouded in secrecy? Even if there ever were negotiations, they have obviously broken down, and the case will have to go back to the courts. It therefore appears that the next stage will be an appeal by the MOD against the limitation ruling. Even that will not take place until—

Order. I do hope the hon. Lady will not be going into too much detail about a case that is currently before the courts.

I certainly will not, Madam Deputy Speaker.

Even that stage will not take place until May, after millions more pounds have been spent by lawyers and after more veterans have passed away, and even then, that will only resolve limitation. Presumably, there will then be a court case about causation, which would involve more money going to lawyers, not to our brave servicemen.

I am just a Back-Bench MP. I want my constituent to have an apology and some recompense for what happened to her poor husband and their children. It seems to me that we are at an impasse. The Government say, “Oh yes, there have been genuine negotiations.” The lawyers say, “Oh no there haven’t.” The Government say, “Oh yes, we have made a settlement proposal.” The lawyers say, “Oh no you haven’t.” It might be pantomime season, but our veterans and their families are looking for a Prince Charming—except that this is not a pantomime, and nobody is laughing. This is really serious. In fact, it is a scandal.

Tens of millions of pounds have already been spent on lawyers alone. That money could, and should, have gone straight to people like Shirley Denson. Over the past few days I have heard about this from all sides, and I still cannot tell who is to blame: it might be the lawyers who are stopping a settlement being made, but the limitation trial and the ongoing secrecy surrounding the settlement proposals have done my hon. Friend no favours. They make it look like the MOD is using “due process” to avoid making a payout. However, I hope that he will be our Prince Charming. I ask him to use this opportunity to prove his commitment to our veterans. Let us agree to settle this now, through an apology to, and recognition of, nuclear test veterans and their families, and a modest recompense as thanks for their courage, commitment and loyalty to their country.

I am grateful to my hon. Friend the Member for Mitcham and Morden (Siobhain McDonagh) for securing this debate on what is, as she said, a serious subject. The nuclear test veterans issue remains an emotive one more than 50 years since the first nuclear tests were conducted. Some 28,000 British servicemen were involved in the test programmes, the majority in logistic support. I certainly recognise the debt of gratitude we owe to those servicemen who took part in delivering those important nuclear tests.

I understand that last month Members received a letter from Mr. Neil Sampson, a partner in the law firm Rosenblatt, which represents the British atomic veterans’ claimants group. I believe that Mr. Sampson’s letter made several misleading assertions, and I wrote to Members on 4 December to refute them. I am glad to have the opportunity today to go into more detail and to make the Ministry of Defence’s position clear.

For some years, a number of veterans of the test programme have claimed that their health has been directly damaged by deliberate, or accidental, exposure to ionising radiation. The MOD, and successive Governments, have consistently rejected these claims. That is based on three comprehensive and exhaustive studies, none of which found a greater incidence of mortality or cancer in nuclear test veterans than in a matched control group.

Most critically, I want to focus Members’ attention on precisely what has happened in the litigation process, so that we are in no doubt about the current situation. Legal proceedings were served on the MOD in April 2005, and since April 2006 the veterans’ case has been handled by Rosenblatt Solicitors of London. The particulars of the claim were served in December 2006 and the MOD served its summary defence in January 2008. The MOD disclosed a list of 12,295 documents in June 2008, and the parties identified five lead cases each to be heard in the High Court that were considered to be representative of the entire claimant cohort. A High Court trial was held between 21 January and 6 February 2009 to rule on limitation only. I should explain that the Limitation Act 1980 sets out that personal injury claims should be brought within three years of the date of injury, or within three years of the injured person’s date of knowledge that the injury may have been caused by past events.

The Court was asked to rule on whether the MOD was prejudiced by the delay in bringing claims, given that many of its key witnesses are no longer alive or are not able, due to age, infirmity or loss of memory, to give evidence. The Court’s judgment on limitation was handed down on 5 June 2009 and ran to more than 200 pages. The main findings were that five lead cases were time-barred and five were not. Importantly, the judge exercised his discretion under section 33 of the Limitation Act to permit the out-of-time cases to proceed to trial. That means that the group action of 1,011 cases may now proceed to a trial on causation and breach of duty. I should like to clarify one point. Contrary to media reports, the veterans have not secured a ruling that compensation should be paid. The ruling was on the limitation point, which is subject to challenge in the Court of Appeal.

The judge expressed concern about the claimants’ ability to prove that their condition was caused by exposure to ionising radiation in the tests. He said that he did not want them to be misled by his judgment into thinking that they will be successful at a causation trial. He acknowledged that the case law on causation as it stands, if strictly read, poses a potential problem for the claimants. He said of one case that

“in terms of apparent strength of this claim, on the evidence as it stands, it seems to me to be arguable, but not overwhelmingly so”.

He was also of the view that the cases can be tried fairly on the documentary evidence alone, and that the absence of the vast majority of witnesses would not be unfair or prejudice the MOD’s case. He acknowledged that it might be an injustice if the MOD had to pay the claimants’ lawyers costs. I will cover that issue later.

Following submissions on 19 June 2009, the judge granted the MOD leave to appeal his decision, not only on the limitation issue but regarding legal costs. The judge concluded:

“The Government is, of course, pledged to settle legal cases by Alternative Dispute Resolution (ADR) in all suitable cases whenever the other party agrees to it. In my view this is such a case”.

Despite what is claimed by Neil Sampson of Rosenblatt, I have taken great care in my dealings with this case to ensure that the MOD has adhered to the judge’s wishes in all aspects of the case. We have attempted to settle the matter through ADR by holding counsel-to-counsel negotiations. My hon. Friend has mentioned confidentiality, and the ADR process is confidential between the parties, so I cannot reveal the details of those negotiations as that would breach the confidentiality agreement between the two parties.

I continue to respect the confidentiality of that process, but I cannot allow Rosenblatt’s allegations to stand unchallenged, so I shall address them by setting out exactly what has happened. Between the hearings of 19 June and mid-November, genuine negotiations took place between the two parties’ respective counsels—Benjamin Browne QC for the claimants and Charles Gibson QC for the MOD. I understand that Benjamin Browne is no longer the counsel for Rosenblatt. For the avoidance of doubt, let me make it clear that when I describe meetings between the parties, or meetings between the MOD and Rosenblatt Solicitors, I mean that the respective QCs representing the MOD and Rosenblatt have met. That is not unusual when settling a case such as this.

On 29 September I, as the responsible Minister, authorised a settlement proposal, although again I cannot disclose the amount. The proposal was conveyed to Rosenblatt’s counsel. Whether or not he passed this proposal on to Rosenblatt is a matter for them, although it would be remarkable if he did not. It certainly appears that the veterans themselves were not told about it, and no response has been received to date.

I therefore gave instructions in early November that the claimants’ lawyers be given another chance, and an e-mail was sent by Charles Gibson QC to Benjamin Browne QC. Again, it would be curious if counsel did not pass this on to Rosenblatt but, again, it has been met with silence. Therefore, no settlement has been achieved.

I think this demonstrates that the MOD, and myself as the Minister responsible, have made every effort to engage with the claimants’ lawyers, but without success. That left us with no option but to proceed with an appeal, which is listed for a three-week window starting on 4 May 2010.

I should also like to put on the record that Rosenblatt seem to have engaged in a remarkable amount of unusual activity outside the legal process, which I am concerned about. First, I find it quite remarkable that a public relations company was in attendance at the High Court trial, on behalf of the claimants. I understand from my team that that was the first time any of them had experienced that.

The second matter of great concern to me is that the parliamentary lobbyists who claim to represent Rosenblatt met a special adviser to the Secretary of State for Defence in an attempt to persuade him to change the Department’s stance. Curiously, the lobbyists appeared to be as much in the dark as the veterans about the fact that a settlement proposal had been made.

Thirdly, I received a letter from Mr. Neil Sampson, who wrote to me in my capacity as a Member of Parliament rather than as Minister for veterans, asking to meet me. Interestingly, he signed the letter as legal counsel for the atomic veterans claimant group, but he did not use paper headed with the Rosenblatt name. When all those factors are taken together, it is hard to avoid the conclusion that there has been an attempt to circumvent the legal process.

I turn now to the question of costs. The High Court ordered the MOD to pay the claimants’ counsel and Rosenblatt costs of £7.5 million, although the Department argued that costs should properly be reserved, until the outcome of the Court of Appeal hearing. That was based on the fact that permission had been granted for the MOD to take the case to the Court of Appeal, where some or all of the High Court judgment might be overturned. Even on the judge’s own analysis, the claimants’ causation case was weak, leaving the MOD in fear that some, if not many, of the claimants might discontinue their claims. The judge dismissed that argument, but added that the MOD can seek a refund in the event of any appeal succeeding.

An application will be made to the High Court tomorrow morning by the claimants’ counsel—although that will not be Mr. Browne—and Rosenblatt about the litigation, and there will be a request for even more money. The claimants will say that they are substantially out of pocket in this case and will request a court order for a further £2 million on account. That would make an interim total of £9.5 million, which they claim covers about 80 per cent. of their costs, and it implies that the legal costs to date are approaching a staggering £12 million.

Indeed, Mr. Sampson devotes the first half of the witness statement attached to Rosenblatt’s application to his costs.

Order. I remind the Minister, as I did the hon. Member for Mitcham and Morden (Siobhain McDonagh), that too much detail is not acceptable when a case is before the courts.

I accept that, Madam Deputy Speaker.

Only after making that application for costs does Mr. Sampson turn to his clients’ case, and one may wish to draw one’s own conclusions from that. By comparison, I confirm to the House that the MOD’s legal costs, as invoiced on 27 November, totalled £2,661,225.

Finally, I turn to the medical research. Although we have not seen any medical or scientific evidence to substantiate the claims of ill health, we are determined to address the ongoing concerns expressed by nuclear test veterans. That is why I announced to the House on 21 April our intention to work with veterans and experts to investigate the particular health needs of nuclear test veterans and their offspring, with a view to identifying priorities and taking action to improve health.

Over the past few months we have sought to develop proposals for research that would generate practical results, be scientifically credible and be available in a reasonable time scale. We have identified an opportunity to work with academia in this area of health needs analysis, and of course, we will continue to work with the British Nuclear Test Veterans Association on taking this work forward. I have asked officials to draw up costings for the proposals, and I expect this work to be complete early in the new year. We will then put out a tender for the work to start in the first half of 2010. My officials will meet the BNTVA to discuss our proposals early in the new year.

Do I feel for these individuals? Yes, I do. Do I feel for my hon. Friend’s constituents? Yes, I do, as she does. This is a legal case, but that case is really about only one thing: hard evidence. The hard evidence simply does not support the veterans’ legal case. Grounds do not exist for compensation to be paid. That is why we are proceeding to an appeal. No amount of misleading statements by Rosenblatt, made privately or through the media, can alter the fact that we have made a genuine attempt to put forward a settlement proposal, but we have received no response. Rosenblatt’s claimed ignorance of these facts does the veterans a great disservice by raising their hopes and dramatically raising expectations. As I say, I feel for people such as Shirley Denson, and I can only sympathise with the veterans that Rosenblatt claim to represent. Some veterans need to ask some hard questions about the way in which Rosenblatt have conducted themselves in this case.

Question put and agreed to.

House adjourned.