Drawing a line: Protecting veterans by a Statute of Limitations Contents

4Reforming the system

A presumption against prosecution?

100.In March 2019, The Sunday Times reported that the then Defence Secretary, the Rt Hon Gavin Williamson MP, was seeking to bring forward legislation in the next Queen’s Speech to protect veterans from prosecution for alleged historic abuses. According to the report, the proposed legislation would create a “statutory presumption against prosecution [ … ] if the alleged offence took place more than 10 years ago”. The legislation would require Attorney-General consent for any prosecution to proceed and would produce new advice from the Law Officers on “the level of evidence required to bring forward a prosecution, as well as set[ting] a test for whether bring[ing] forward the case is in the public interest”.81

101.On 15 May the new Defence Secretary, the Rt Hon Penny Mordaunt MP, announced that the Government would bring forward, for further consultation, proposals aimed at providing stronger legal protections for Service personnel and veterans against prosecution. In addition to the ‘presumption against prosecution’ proposal that was revealed by the media in March 2019, the new announcement included the suggestion that Service personnel and veterans would be protected from investigations into actions on overseas battlefields after 10 years, except “in exceptional circumstances” such as the emergence of compelling new evidence.

102.The proposals would not apply to Northern Ireland-related fatalities. However, the Defence Secretary, addressing the RUSI Seapower Conference, indicated that the MoD would have a role contributing to the Northern Ireland Office’s development of its legacy proposals. She also expressed her view that the lessons learnt from investigating allegations in Iraq and Afghanistan should also be applied to Northern Ireland.82

103.On 21 May 2019, the Secretary of State for Defence laid a Written Ministerial Statement, providing further details about her Department’s proposals. In the Statement, she expressed the Government’s opposition to veterans and Service personnel “being subject to repeated investigations in connection with historical operations many years after the events in question”. To “address the basic unfairness of repeated investigations”, the Defence Secretary confirmed that a “short public consultation” would be undertaken on measures that she believed should “be taken forward in legislation”. One of these measures was the widely trailed presumption against prosecution for alleged offences that took place more than a decade earlier and which were “the subject of previous investigation”, save in “exceptional circumstances”.83

104.The Defence Secretary confirmed that the proposals would not apply to Troubles-related offences. However, she stated that the Government’s “obligations to those who served in Northern Ireland remain the same as those who served in other theatres” and explained that it had been agreed with the Northern Ireland Secretary that the MoD would “provide formal input to any process taken forward by the Northern Ireland Office”. The Defence Secretary also confirmed the Government’s intention to derogate from the ECHR ahead of future conflicts.

105.We welcome the announcement by the Defence Secretary that she will bring forward proposals on protecting Service personnel and veterans from prosecution. We hope that these proposals will indeed include a bar on new investigations for events that took place more than a decade ago unless there is compelling new evidence. A presumption against prosecution and protection from a fresh cycle of investigations, in cases which have previously been investigated and where there is no compelling new evidence, would be a sensible package of reforms. It would also be in keeping with the recommendation our predecessor Committee made, in relation to Northern Ireland legacy investigations, in 2017.

106.However, we are extremely concerned that these proposals will not cover soldiers who served in Northern Ireland during The Troubles. We appreciate that legacy investigations in Northern Ireland are the subject of a cross-party process and form an important strand of the talks aimed at restoring devolution. Nonetheless, the treatment of UK Armed Forces should not be inferior in Northern Ireland to that which applies to legacy issues from conflicts overseas. Indeed, the protection of Service personnel and veterans everywhere should be a subject of the utmost importance to the UK Parliament and Her Majesty’s Government.

107.The lives of those who served in defence of the United Kingdom deserve an equal protection from ‘lawfare’ and vexatious claims, regardless of where they served or where they now live, as the Defence Secretary herself acknowledged in her Written Statement on 21 May. We intend to do all we can to secure this self-evident outcome.

108.We remind the Government that, in the context of Northern Ireland, our predecessor Committee expressly recommended not only a Qualified Statute of Limitations for Service personnel and veterans, but one which was coupled with a truth recovery mechanism aimed at providing the families of victims that best possible hope of uncovering the truth. We continue to believe that this offers the best route forward.

109.We understand that the Government’s proposals will be put out to consultation and we recommend that this process should include the publication of any bill in draft form. Such a draft bill should be made available for pre-legislative scrutiny by this Committee and, after it secures its Second Reading when introduced formally before the House, it should be remitted to an ad-hoc Select Committee for its Committee Stage, as is customary for Armed Forces Bills.

Corporate Responsibility

110.In both her written and oral evidence, Hilary Meredith proposed that that MoD take corporate responsibility for criminal behaviour as a means of protecting Service personnel. This, she suggested, could be done by transferring the doctrine of combat immunity into criminal law.84 Under an arrangement of this sort, wrongdoing would be investigated and punished internally by the military under Courts Martial.85

111.Professor Richard Ekins, appearing alongside Ms Meredith, queried the practicality of this arrangement and suggested that under such a model, where the civilian courts would have to examine the liability of the MoD, there would still be a need to investigate in depth the actions of the Servicemen involved. According to Professor Ekins:

It might not be that they are exposed to criminal liability or civilian liability personally, but often simply having to be investigated and give evidence, and having this as a mark on your career, especially if you are serving, is going to be highly problematic.86

Overall, Professor Ekins’ assessment was that he did not think that such a scheme, which allowed action against the MoD for years and decades to come, “would protect the individuals in question”.87

112.We share the scepticism about Hilary Meredith’s scheme for MoD corporate responsibility for alleged military crimes, and are concerned about the message that it would send. Service personnel who are promptly and properly investigated, and found guilty of criminal offences, should face the consequences themselves rather than being shielded by the MoD taking corporate responsibility.

Reform and derogate?

113.Another proposal for providing better protection for Service personnel and veterans, put forward by Professor Ekins, was that the UK should derogate from the ECHR, in advance of future conflicts, and amend the Human Rights Act.88 He explained that legacy investigations have materialised as a result of “a combination of European human rights law and the obligations that have been foisted upon the Convention by the European Court of Human Rights”[as explored in Chapter 2 of this report]. The result, he claimed, is an “overhang whereby a Government is at risk of human rights challenge if it does not maintain investigations”.89

114.Professor Ekins argued that the ECtHR’s caselaw has extended the Convention back in time and across the world; in particular, he highlighted how, in 2011, an ECtHR ruling overturned the position taken by the House of Lords in 2004 that the HRA did not apply to deaths prior to October 2000 (when the HRA came into force), and how, in 2007, the Al Skeini decision saw the territorial extent of the UK’s obligations extended to territory for which it held responsibility in Iraq between the fall of the Ba’ath regime and the accession of the interim Iraqi government.90

115.Professor Ekins argued that, because of those two developments, Parliament should amend the HRA “to restore the understanding that our House of Lords [as the then Supreme Court] had in relation to the temporal application of the Act” and to similarly do so in relation to its territorial extent. He stressed that such a move “should not be viewed as a revolutionary act” nor of being of “the same level of political controversy” as would arise if repealing the HRA were proposed.91 In his opinion, unless the HRA were amended it would be “very difficult” to address the problem of continued legacy investigations.92

116.In addition, Professor Ekins believed that the Government should seek to derogate from the ECHR in advance of future conflicts. He argued that the only reason that this had not been done in the cases of Iraq and Afghanistan was “because no one thought it [the ECHR] would apply”. Had the UK derogated then it “would have helped” although he recognised that it would not have resolved the problem entirely as there are some articles of the ECHR from which states cannot derogate.93

117.He further suggested that derogation and reforming the HRA should be seen as complementary steps. Derogation alone risks the intervention by the ECtHR or a domestic court. However, he believed that “we can protect the derogation against our own courts if we legislate to remove their power to second-guess a derogation”. 94

118.Professor Ekins acknowledged that this could be a difficult issue for the ECtHR and that amending the HRA would not be a risk-free option.95 The ECtHR could, he conceded, “hold the United Kingdom to be in breach of its obligations. That is a serious possibility”.96 Despite suggesting that “plenty of countries [ … ] have failed to confirm and been held to be in breach on more than one occasion”, he also recognised that the United Kingdom was a “very law-abiding nation [ … ] and for good reason”. Nonetheless, this would be “an instance of principled defiance” where the UK would “be holding the line on the position that is clearly set out in the European Convention, and was undone by the Strasbourg Court’s misinterpretation, especially in the Al-Skeini case”.97 Ultimately, he suggested, it was a “political question whether the United Kingdom is willing to establish and hold a firm line in relation to not needlessly reopening investigations”.98

119.Professor Ekins’s written evidence outlines two possible alternative amendments to the HRA to alter its temporal and territorial scope. The first proposed amendment would see two new subsections inserted into s.22 of HRA:

(8) Nothing in this Act applies in relation to–

(a) an act taking place before 2 October 2000; or

(b) an act taking place outside the United Kingdom; or

(c) any failure, on or after 2 October 2000 or within the United Kingdom, to respond to an act that falls within (a) or (b).

(9) In section 22(8), responding to an act includes investigating or otherwise having regard to evidence that it might have occurred and to providing a remedy for it.

According to Professor Ekins, the proposed s.22(8) “rules out extra-territorial application of the HRA” and would reinstate the territorial understanding of the HRA and ECHR that the Government unsuccessfully argued in the Al-Skeini case. This would, he suggests, “make the Act’s application somewhat more limited than the scope of the UK’s ‘jurisdiction’ in the Bankovic sense, for while the Strasbourg Court held that jurisdiction is primarily territorial, it did allow for some limited extra-territorial applications”.99

120.The second proposal put forward by Professor Ekins would, he argued, “more closely track the UK’s obligations under the Convention” and would amend the HRA to “incorporate the Bankovic understanding of ‘jurisdiction’, rejecting the Al-Skeini v UK expansion”:

(8) Nothing in this Act applies in relation to–

(a) An act taking place before 2 October 2000, or

(b) An act taking place outside the United Kingdom otherwise than at a time when that place was within the reach of United Kingdom law, or

(c) Any failure, on or after 2 October 2000 or at a place within the United Kingdom or within the reach of United Kingdom law, to respond to an act that falls within (a) or (b).

(9) In section 22(8), responding to an act includes investigating or otherwise having regard to evidence that it might have occurred and to providing a remedy for it.

(10) In section 22(8), a place outside the United Kingdom is within the reach of United Kingdom law if it is–

(a) An embassy or consulate of the United Kingdom, or

(b) A military base or vessel or aircraft under the control of United Kingdom military forces, or

(c) A British ship or aircraft, or

(d) A territory in which the United Kingdom has effective control of the territory and its inhabitants as a result of military occupation or through the consent, invitation or acquiescence of the Government of that territory and in which the United Kingdom exercises all or some of the public powers normally to be exercised by that Government in accordance with the law of the United Kingdom (other than this Act) or a part of the United Kingdom.

Professor Ekins suggests that this amendment would “make provision [as explained above] for some limited extra-territorial application”, although there is a risk (due to s.22(10)(d)) “that the courts might interpret it in ways that effectively reinstate the Al-Skeini expansion”. To counter this, he further suggests that the extra-territorial reach of the Act could be limited to sub-sections (a) to (c) of his proposed s.22(10). He claims that this would “largely, but not entirely, reflect the Bankovic ruling and would minimise the risk of subsequent judicial sabotage”.100

121.According to Professor Ekins, amending the HRA in these ways “would free the Government to discontinue investigations into veterans without the risk of challenge in domestic courts for breach of human rights law”. He explained that the amending legislation “should specify that it is not subject to sections 3 and 4 of the HRA”, as otherwise claimants could “invite domestic courts to undermine the amendments by way of ‘rights-consistent’ interpretation or to denounce the amendments and put pressure on Parliament and Government to repeal them”.

122.Professor Ekins acknowledged the political and legal risks of amending the HRA, including a ruling against the UK Government by the ECtHR. Nonetheless, he emphasized that, in his opinion, “where the Strasbourg Court has fundamentally misconstrued the law then there are good reasons for the UK to consider not complying with its rulings”.101

The MoD’s response to Professor Ekins’s proposals

123.While suggesting that the above proposals deserved careful attention, the MoD, in supplementary written evidence to our inquiry, cautioned that there appeared to be some significant challenges to implementing them and warned that they did not provide “a complete solution”. In particular, the MoD warned that the proposals “would not remove the obligations under domestic criminal law and under international law to investigate serious allegations”.102

124.According to the MoD, by removing the ability to bring before domestic courts claims for ECHR violations that occurred overseas or before 2000, legal risks could increase “as the domestic courts currently provide some insulation against further expansion of the ECHR” and the loss of the ability to use the closed material procedure in domestic courts would likely see the Government unable to defend in the Strasbourg court claims that involve issues of national security.103

125.Although reiterating the Government’s pledge to consider derogating from aspects of the ECHR in advance of future conflicts, the MoD’s written evidence emphasises the Government’s continuing commitment to membership of the ECHR. According to the MoD, “the Human Rights Act gives further effect to the ECHR in our domestic law, and we are not considering amending or repealing it”.104

126.In response, Professor Ekins expressed his disappointment at the approach taken by the MoD towards his proposals. He considered that his proposals conformed to the position taken by UK courts prior to 2011, that the HRA and the ECHR “did not apply to deaths that took place before 2000 or outside the UK (with very limited exceptions)”. He went on to suggest that “the MOD’s response effectively concedes, but also understates, the domestic legal risk to which the Government is now exposed if it fails to reinvestigate historic incidents. This legal risk is a contributing factor to the difficulty of protecting veterans”.105

127.Calling on the Government to adopt the stance taken on prisoner voting,106 Professor Ekins argued that “the Government’s reluctance to consider amending the HRA is disappointing [ … ] [and] sharply limits the prospect that the Government will introduce changes that are capable of addressing the problem”. He, therefore, urged the Government to “be bolder in its thinking, to avoid taking the jurisprudence of the Strasbourg Court to be a strait-jacket, and to introduce proposals to Parliament that respond directly to the problem we confront”.107

128.We agree with Professor Ekins that the ECtHR has gone beyond the original understanding of the Convention and that its rulings have stretched the temporal and territorial scope of the HRA beyond Parliament’s original intentions in 1999.

129.We understand the Government’s concern about the potential consequences of reforming the HRA and the implications for the UK’s continued membership of the ECHR. However, it is also clear that the ECtHR’s expansionism is one of the main drivers of the relentless cycle of legacy investigations. If the Government’s proposals for implementing a presumption against prosecution are to succeed in stopping the injustice of repeated, and vexatious, investigations, then it needs seriously to consider whether the Human Rights Act also needs to be amended to counter the expansionist rulings of the European Court of Human Rights.

130.Despite the concerns expressed by the MoD in its written evidence to our inquiry, we are strongly attracted to Professor Ekins’s proposals as a basis for further work. Of his two proposals, the second option appears to pose the lesser legal risk and, due to the importance of the jurisprudence of the European Court of Human Rights in sustaining legacy investigations, this option should be properly and carefully considered and should, therefore, be included in the Government’s consultation alongside its preferred proposal.

Statute of Limitations

131.The question of whether a Statute of Limitations should be established to protect Service personnel from re-investigation long after alleged events took place has been an important feature of our work in conducting this inquiry and that of our predecessor Committee in its 2017 report on legacy investigations in Northern Ireland.

132.In 2017, our predecessors argued for the creation 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”. They also recommended that this be paired with a “truth recovery mechanism” as a means both of satisfying legal requirements for investigations to occur—though without the prospect of prosecutions—and therefore of helping bereaved families finally to discover the facts.108

133.In undertaking this inquiry, we have sought to examine whether this proposal could be established to cover all previous conflicts and whether this could be done in a manner consistent with the UK’s legal obligations. Unsurprisingly, evidence to our inquiry has shown a marked difference of opinion among witnesses about a Statute of Limitations.

Opponents of a Statute of Limitations

134.Opposition to the idea primarily rests on two objections: 1) that it could have deleterious consequences in Northern Ireland; and 2) that it would be contrary to the UK’s international legal obligations and could invite challenge from international courts.

135.On the first point, KRW LLP warned that a Statute of Limitations would be contrary to the “delicate compromise” reached by Northern Ireland’s political parties in the Stormont House Agreement (SHA) and would “destabilise” this arrangement.109 Doug Beattie MLA, in his evidence on behalf of the UUP, also advised against a Statute of Limitations, arguing that such a system would “not achieve the purpose for which it is intended—namely protecting troops” as it would end up being extended to cover terrorist and paramilitary groups.

136.Mr Beattie also warned that it would cause “reputational damage” to the UK and instead argued that the Royal Prerogative of Mercy “must be viewed as the fall-back position for any soldier found guilty of a crime that is not premeditated”, suggesting that such a mechanism could enable those charged “to make a clear statement of fact knowing that they will not be facing jail” and that this could be conducted in closed court with no media coverage. Finally, Mr Beattie argued that the Government should stop legal aid for historical actions against the military, suggesting that this “should apply to those abusing the legal aid system and who are trying to rewrite history”.110

137.On the broader point about the potential impact on the UK’s international standing and obligations, Dr Carla Ferstman and Dr Thomas Hansen, from the University of Essex, warned that a Statute of Limitations could be seen as the UK disregarding its obligations and “would not only undermine the UK’s role as a champion of the rule of law internationally, but could also make UK citizens liable to prosecutions before the ICC and undermine respect for UK Armed Forces”.111

Support for a Statute of Limitations

138.General (Rtd) Sir Nick Parker in both his written and oral evidence strongly supported a Statute of Limitations,112 although he expressed scepticism as to whether such a system would be established and how long this would take. He, therefore, also emphasized the need for the MoD to “provide the appropriate level of support to any veterans who become involved in any impending inquests” and made the case for all such veterans to receive their own lawyers independent from, but funded by, the MoD.113

139.Colonel (Rtd) Jorge Mendonça also expressed his support for the idea of Statute of Limitations, “providing that there is no startling new evidence that stands up”.114 Colonel (Rtd) Tim Collins, however, was more sceptical of the idea and stated that he believed in the rule of law and holding the Armed Forces “to the highest standards”.115 However, he indicated that he could “absolutely” consider supporting such a scheme if it could be compliant with the UK’s Article 2 obligations, and the rule of law.116

140.Professor Ekins also told us that he believed that a Statute of Limitations was a “very good idea” and emphasized the need to “close down, by legislation, the risk of criminal trials 40 or 50 years later [after the alleged events took place]”.117 While he expressed doubt as to whether prosecutions of veterans for alleged offences that took place so long ago would often succeed, he reiterated that a “legislative bar is a very good idea”, saying that the current “unfairness is too great”.118

The MoD’s stance on a Statute of Limitations

141.In its written evidence to the Committee, the MoD explained that the work undertaken by its internal team, established in July 2018 to examine the issue of legacy investigations, “has led us to the conclusion that a Statute of Limitations covering all military operations would be very challenging”. According to the MoD, there would be a two-fold risk:

In relation to offences alleged to have been committed during military operations overseas, there is a substantial risk that the absence of a domestic system of prosecution would probably lead to the International Criminal Court (ICC) asserting its jurisdiction.

Meanwhile, in the Northern Ireland context, the Committee heard evidence in 2017 which suggested that a Statute of Limitations specific to deaths which occurred during the Troubles could be lawful, but only if applied to both non-state actors (paramilitaries) and state actors (Armed Forces and the Police). The Committee heard that an amnesty that applied only to Service Personnel would not be compliant with the UK’s ECHR obligations.119

142.In coming to these conclusions, the MoD also examined cases where amnesties had been enacted in other ECHR member states, including an amnesty enacted by the French Government in one of its overseas territories (New Caledonia) and an amnesty enacted by the Croatian Government after its war of independence. However, the team had not spent “significant amounts of time studying amnesties enacted in countries which are not parties to the Convention”.

143.The MoD found that where amnesties have been enacted in countries which are parties to the ECHR, they have been “enacted with the purpose of promoting peace and reconciliation following periods of conflict or civil unrest and have applied to all participants in the conflict or civil unrest”. The MoD also argued that there were “no examples of which the team is aware where a signatory to the ECHR has enacted a Statute of Limitations which prevents prosecutions only of Service personnel, or only of persons acting on behalf of the State more generally, from being brought in connection with a conflict or civil unrest after a prescribed number of years”.120

144.The MoD’s team also considered examples of where statutes of limitations of general application exist in other ECHR countries, e.g. Germany. Based on the team’s assessment, the MoD highlighted two points:

First, where statutes of limitations do exist they apply in respect of crimes committed by all persons, not a particular class of persons (e.g. Service personnel). Secondly, the team are unaware of any examples of such a Statute of Limitations having operated to prevent the prosecution of an individual acting on behalf of a State for causing a death—something which would appear inconsistent with the State’s obligations under Article 2 ECHR.

General conclusions

145.We are disappointed, but not surprised, that critics of our predecessor Committee’s proposal for a Statute of Limitations have failed to acknowledge that the Committee has made clear that it is not proposing, and does not endorse, a blanket Statute of Limitations nor one that does not provide scope for re-investigation where compelling new evidence emerges.

146.We are firm in our belief that the proposals represent a Qualified Statute of Limitations that recognises both the importance of investigation of serious offences and the possibility of compelling new evidence emerging. Such a Statute of Limitations would in no way constitute an ‘amnesty’, rather it would require Service personnel and/or veterans to have already been investigated and exonerated of the offences in question.

147.We are therefore pleased that it appears that the proposals, outlined by the Defence Secretary, amount to a ten-year Statute of Limitations, qualified by an exception where compelling new evidence has been discovered.

148.We look forward to scrutinising the Government’s proposals in detail when they emerge, but we remind the Government that if the ECtHR seeks to overrule these plans, the option will remain of changing the UK’s stance in relation to the ECHR on the lines recommended by Professor Richard Ekins. This problem can be solved—but only by a resolute Government with the determination to do so.

81 C. Wheeler and R. Kerbaj (The Sunday Times, 3 March 2019), Minister seeks 10-year limit on prosecutions of soldiers

82 Ministry of Defence (15 May 2019), Defence Secretary keynote speech at the Sea Power Conference 2019, GOV.UK

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106 In Hirst v. UK No.2 and Greens and MT v. UK, the ECtHR ruled that the UK’s blanket ban on prisoner voting was in breach of Protocol 1 Article 3 of the ECHR. The ban is still in place, although the UK Government was ordered to pay €23,000 in costs and expenses to Hirst in October 2005. In 2012, following a warning from the ECtHR about the continuing breach of the ECHR, the UK Government introduced the draft Voting Eligibility (Prisoners) Bill. The draft Bill received pre-legislative scrutiny from a specially appointed Joint Committee. A formal Bill was never introduced before Parliament. See: I. White and A. Horne (11 February 2015). Prisoners’ voting rights (2005 to May 2015), House of Commons Library Standard Note: SN/PC/01764

108 Defence Committee, Investigations into fatalities in Northern Ireland involving British military personnel, Seventh Report of Session 2016–17, HC 1064, para.52

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Published: 22 July 2019