Conclusions and recommendations
Our inquiry
1.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. (Paragraph 13)
The Law Governing Armed Conflict
2.The legal frameworks underpinning the role of the Armed Forces in civilian and military operations are becoming increasingly complex and difficult to navigate, particularly in the fog and confusion of operations and conflicts. We share the judgement of our predecessor Committee in its 2014 report that the tensions and overlap between International Humanitarian Law (the Law of Armed Conflict) and International Human Rights Law have led to a lack of certainty and clarity. The expansionary judgements of the European Court of Human Rights have served to add even further uncertainty to this picture, particularly when their judgements have, in some important instances, had the effect of applying the Convention and its obligations retrospectively. (Paragraph 59)
3.This complexity and uncertainty has meant that it is all the more challenging and all the more urgent that commanding officers and Service personnel fully understand the laws governing the conflicts in which they are engaged. The importance of clear and accessible law has become well established in the civilian sphere, not least through the work of the Law Commission, and this principle should be just as, if not more, important when it comes to our Armed Forces. (Paragraph 60)
4.In light of the increasing complexity of the legal frameworks underpinning military operations, the MoD should ensure that sufficient resources are made available for educating the Armed Forces, on a more regular basis, about their legal obligations. (Paragraph 61)
Legacy Investigations - Past and Present
5.We find the idea that a Serviceman could be told that he was under investigation, but not told what for, a disturbing one; equally disturbing is the idea that, on the conclusion of the investigations, he was not told what the findings were. The MoD should examine Colonel Collins’ testimony and undertake the necessary investigations of its procedures to establish what happened in this case and to ensure that such a scenario can never happen again. (Paragraph 68)
6.Overall, there appears to be a good level of legal support available to those under investigation, as Colonel Mendonça attested to during his evidence. We are aware of the concerns expressed by Sir Nick Parker that there could be potential conflicts of interest for the Government as a funder of legal support. We therefore call upon MoD to do all it can to ensure that this risk is minimised. There is also a danger that the current approach to legal provision risks the Service community missing out on the accumulation of collective knowledge and expertise. We recommend that the MoD must engage with law firms with long experience of, and proven expertise in, providing counsel to those under investigation, in order to learn the lessons of these experiences and to ensure a more coherent approach to supporting veterans and Service personnel. (Paragraph 97)
7.While we are broadly reassured about the provision of legal support to those under investigation, our inquiry has raised concerns about the level of welfare support—particularly about the ability for veterans to access welfare support. There is a real risk that veterans who do not live near regimental associations could slip through the net. (Paragraph 98)
8.We recommend that the Government should adopt a more proactive approach to assessing, and providing, the welfare support that veterans and Service personnel facing legacy investigations may require. The Veterans Gateway needs to be fully utilised as a means of directing veterans towards available help and the MoD should undertake a campaign to make contact with those veterans who may not be in close range of regimental headquarters or well equipped to use online resources. (Paragraph 99)
Reforming the system
9.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. (Paragraph 105)
10.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. (Paragraph 106)
11.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. (Paragraph 107)
12.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. (Paragraph 108)
13.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. (Paragraph 109)
14.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. (Paragraph 112)
15.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. (Paragraph 128)
16.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. (Paragraph 129)
17.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. (Paragraph 130)
18.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 (Paragraph 145)
19.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. (Paragraph 146)
20.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. (Paragraph 147)
21.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. (Paragraph 148)
Published: 22 July 2019