1Introduction
Context
1.In this and the last two Parliaments, we and our predecessor Defence Committees have examined the increasing encroachment of litigation into the sphere of military engagements, leading to the pursuit of veterans and Service personnel over incidents that took place, in some instances, decades before.
2010–2015 Parliament
2.In 2014, the Committee conducted a major inquiry into ‘UK Armed Forces Personnel and the Legal Framework for Future Operations’. The report concluded that the Armed Forces and MoD had “faced an unprecedented number of legal cases” between 2004 and 2014, a rise driven by the number, and nature, of the conflicts that UK forces had been engaged in during that period and the “the growing use of challenges under human rights law in UK courts”.
3.The report also noted the tension between International Humanitarian Law (IHL)—also known as the Law of Armed Conflict (LOAC)—the body of law that has traditionally governed armed conflicts, and human rights law (HRL). This tension has led to less certainty and clarity for Service personnel. HRL has resulted in a growing number of cases in which the European Court of Human Rights (ECtHR) has considered operations in armed conflict, thanks to the extraterritorial application of the European Convention of Human Rights (ECHR) “to allow claims in the UK courts from foreign nationals”. The report argued that the “number of cases and the requirement for full and detailed investigations of every death resulting from an armed conflict is putting a significant burden on the MoD and the Armed Forces, not just in resources spent, but in the almost unlimited potential for retrospective claims against them”.1
2015–2017 Parliament: IHAT and Northern Ireland legacy investigations
4.In the 2015–2017 Parliament, the Committee undertook inquiries into the Iraq Historical Allegations Team (IHAT) and the investigations into historic Troubles-related allegations in Northern Ireland. In the case of both IHAT and Northern Ireland, the Committee warned that “in adhering to the pursuit of justice and the rule of law, the Government must not lose sight of its moral responsibility and its commitment to the Armed Forces Covenant with those who have served”.2
5.The Committee concluded that IHAT was “unfit for purpose” and had proven “deaf to the concerns of the Armed Forces, blind to their needs, and profligate with its own resources” and that it should be wound down.3 In February 2017, when the Report would have been under embargo if publication had not been brought forward, the then Secretary of State for Defence, Sir Michael Fallon MP, announced the closure of IHAT and the transfer of its remaining caseload to the Service police system.
6.The Committee’s work on historic Troubles-related investigations in Northern Ireland similarly concluded that the investigatory process to date had been “deeply unsatisfactory” and warned that the instability of the investigatory bodies and the lingering question-marks regarding their independence had “delivered a vicious cycle of investigation and re-investigation that fails both former Service personnel and the families of those who died”.4
7.Warning that the status quo was “not sustainable”, the Committee demanded that the Government bring forward legislative proposals to remedy the situation. It also outlined a menu of potential options. Of these options, the Committee recommended “the enactment of a Statute of Limitations, covering all Troubles-related incidents, up to the signing of the 1998 Belfast Agreement, which involved former members of the Armed Forces”. The Committee further recommended that this should be coupled with a “truth recovery mechanism which would provide the best possible prospect of bereaved families finding out the facts, once no-one needed to fear being prosecuted”.5 Although it was beyond the strict remit of the Committee, our predecessors also encouraged the next Government to extend this provision to include former members of the Royal Ulster Constabulary and other former security personnel.
Our inquiry
8.On 12 June 2018, following the Government’s failure to include, despite a previous promise, the above recommendation in the Northern Ireland Office’s legacy process consultation, we launched a new inquiry into the question “of how former Service personnel can be protected from the spectre of investigation and re-investigation for events that happened many years, and often decades, earlier”.
9.Our inquiry’s terms of reference invited submissions on the following:
a)What are the reasons for investigations into former Service personnel?
b)Following Iraq and Northern Ireland, which previous campaigns are likely to be the next target of investigations?
c)What are the steps that the Government should take to protect Service personnel from investigations and prosecution for historic allegations?
d)What difficulties do the UK’s international legal obligations pose for any attempt at protecting Service personnel?
e)Can a Statute of Limitations, extended to all previous conflicts, be designed in such a way as to be consistent with these obligations?
f)What should be the cut-off date for the Statute of Limitations?6
10.Over the course of our inquiry, we held three evidence sessions. On 4 September 2018, our witnesses were Colonel (Rtd) Tim Collins OBE and Colonel (Rtd) Jorge Mendonça DSO MBE, two decorated veterans who had both been subject to, and ultimately exonerated by, investigations; on 11 December 2018 we took evidence from General (Rtd) Sir Nick Parker and two legal experts, Hilary Meredith and Professor Richard Ekins. Finally, on 8 January 2019, we took evidence from Martyn Day, the Senior Partner of Leigh Day solicitors. We have also received written evidence, including from the MoD and the Ulster Unionist Party. We thank all those who gave evidence to our inquiry; a full list of those who have provided oral and written evidence can be found at the back of our report.
11.Following the launch of our inquiry, the then Secretary of State for Defence, the Rt Hon Gavin Williamson CBE MP, announced in the House of Commons on 9 July 2018 that he had established a “dedicated team within the Ministry of Defence to consider this issue [of protecting Service personnel facing historic investigations]”. The Defence Secretary also stressed his desire to find a “long-term solution to help all Service personnel, from conflicts not only in Northern Ireland, but in Afghanistan and Iraq, to ensure that vexatious claims are eliminated”.7 The Committee strongly welcomed this initiative.
12.Our report begins with an examination of the legal frameworks underpinning the work of the Armed Forces at home and abroad, before moving on to an assessment of the legacy investigations that have been established into Operations Banner, Telic and Herrick. It closes by focusing on proposals for reforming the current system, including amending the Human Rights Act and establishing a Statute of Limitations.
13.At the heart of this inquiry and our Report is a determination to ensure that justice prevails for veterans and Service personnel. This does not mean that those who serve our country are above the law: far from it. We are unequivocal in our belief that wrongdoing must be investigated and punished. However, we also believe that there is something fundamentally wrong when veterans and Service personnel who have been investigated, and exonerated, become subject to what can often seem an unending cycle of investigation and re-investigation. That is neither a just nor a sustainable state of affairs and it risks undermining morale within the Armed Forces and trust in the rule of law.
1 Defence Committee, UK Armed Forces Personnel and the Legal Framework for Future Operations, Twelfth Report of Session 2013–14, HC 931, paras. 127–129
2 Defence Committee, Who guards the guardians? MoD Support for former and serving personnel, Sixth Report of Session 2016–17, HC 109, para. 128; Defence Committee, Investigations into fatalities in Northern Ireland involving British military personnel, Seventh Report of Session 2016–17, HC 1064, para, 7.
3 Defence Committee, Who guards the guardians? MoD Support for former and serving personnel, Sixth Report of Session 2016–17, HC 109, para. 122
4 Defence Committee, Investigations into fatalities in Northern Ireland involving British military personnel, Seventh Report of Session 2016–17, HC 1064, para, 24
5 Ibid., para. 52
6 Defence Committee (12 June 2018), Protecting veterans from the spectre of investigation and re-investigation
7 HC Deb 9 July 2018, col.685–686
Published: 22 July 2019