Overseas Operations (Military Personnel and Veterans) Bill

Written evidence submitted by the Equality and Human Rights Commission (OOB07)

Introduction 

The Equality and Human Rights Commission (‘the Commission’) has been given powers by Parliament to advise Government on the equality and human rights implications of laws and proposed laws and to publish information or provide advice, including to Parliament, on any matter related to equality, diversity and human rights.

The Overseas Operations (Service Personnel and Veterans) Bill (‘the Bill’) was introduced to Parliament in March 2020 and includes a series of proposals that would limit criminal and civil claims relating to the conduct of UK service personnel operating overseas. [1] The Bill proposes a ‘presumption against prosecution’ of service personnel accused of committing a crime overseas if more than five years have passed since the alleged offence took place. [2]

If passed, the Bill will also impose a time limit on civil claims for personal injury and death, [3] and on human rights claims under the Human Rights Act 1988 (HRA), [4] where the conduct in question took place in the context of overseas operations by the UK armed forces. The Bill includes a further requirement that the Secretary of State consider derogating from the European Convention on Human Rights (ECHR) in relation to future overseas operations. [5]

At a time when the UK Government’s adherence to international law is under increased scrutiny, it is imperative that the UK is seen to show the highest regard for the international legal order. The Commission shares the concerns of UN human rights experts, who have called on Parliament to reject the Bill, arguing that if passed it would violate the UK’s obligations under international humanitarian law, human rights law and international criminal law. [6] The Bill risks denying victims access to effective remedy and redress for serious international crimes. Other potential consequences, perhaps unintended, include reducing protections for British service personnel serving overseas, and increasing the likelihood of judgments against the UK in international courts, including the International Criminal Court (ICC) and the European Court of Human Rights (ECtHR).

The Commission is profoundly concerned by the risk to human rights that this Bill poses. In this briefing we recommend support for amendments to the Bill which would remove the main causes of concern from a human rights point of view. We also recommend support for amendments, which, while they would not fully address our concerns, would go some way towards mitigating its most problematic consequences. These changes are in four priority areas:

1. Ensure fairness and equality before the law. We recommend support for amendments that would help redress the balance in the Bill - which currently favours the accused - to ensure fairness and equality before the law for both claimants and defendants.

2. Ensure serious international crimes are prosecuted. We recommend support for amendments that would exclude additional serious international crimes from the scope of the Bill, including torture, genocide, crimes against humanity and war crimes.

3. Ensure victims’ and service personnel’s ability to launch civil claims is not impaired. We recommend support for amendments that would withdraw provisions in the Bill that limit courts’ discretion to determine whether to extend existing time limits for civil and human rights claims on a case by case basis.

4. Ensure that the human rights framework in the UK and internationally is protected. We recommend that an amendment should be tabled that would withdraw the proposed duty on the Secretary of State to consider whether to make a derogation under Article 15(1) of the ECHR in relation to any ‘significant’ overseas operations. At the very least, we recommend support for an amendment that would require future proposals to derogate from the ECHR in relation to overseas operations to be approved by parliament.

Commission’s Recommendations 

1.  Ensure fairness and equality before the law

· We recommend support for amendment 55, which would remove Clause 2, i.e. the ‘presumption against prosecution’, from the Bill. As a fall-back option, we recommend support for amendments 25-28 and 14, which, if implemented together, would ensure that the ‘presumption against prosecution’ does not apply until ten years (instead of five years) after the ‘the day on which the first investigation relevant to the alleged conduct concluded’.

· We recommend support for amendments 1-5, 20, 21 and 56, which would help ensure that when deciding whether to prosecute service personnel for an alleged offence committed overseas the prosecutor is guided by the principles of fairness and equality before the law and undertakes a balanced assessment of public interest.

· We recommend support for amendments 10, 11, and 24, which would remove – or, in the case of amendment 24, provide a check - on the discretion afforded to the Attorney General in deciding whether to allow prosecutions of service personnel for alleged offences committed in the course of overseas operations to proceed in England and Wales.

Why are these amendments needed?

As currently drafted, the Bill creates a statutory ‘presumption against the prosecution’ of current or former military personnel if more than five years have passed since the alleged offence took place, stating that such a prosecution would be ‘exceptional’. [1] Under Clause 3 of the Bill the relevant prosecutor must give ‘particular weight’ to factors that reduce the person’s culpability or otherwise tend against prosecution. [2] These include the adverse effect on the accused of the conditions they were exposed to during their deployment overseas [3] and the public interest in finality where there has been a previous investigation and no compelling new evidence has arisen. [4]

The proposed ‘presumption against prosecution’ amounts to a statute of limitations and, as the bill is currently drafted, would be applicable to torture and ill-treatment, [5] and in principle to international crimes including genocide, war crimes and crimes against humanity. When such rights are engaged, a statute of limitations is contrary to the international human rights framework [6] and customary international law. [7] The proposed ‘presumption against prosecution’ would also contravene the UK’s procedural obligations under Articles 2 and 3 ECHR to investigate the lawfulness of actions involving the use of lethal force or alleged torture or ill-treatment by service personnel in overseas operations. [8] The ‘exceptionality’ element of the Bill may also act as a deterrent against prompt investigations into crimes committed in the course of overseas operations, [9] and risk prejudicing the outcome of any such investigation. [10]

The Bill further stipulates that a prosecutor must consider whether any ‘compelling new evidence’ has become available when deciding whether to proceed with a prosecution, and if not the prosecutor must give ‘particular weight’ to the public interest in finality. [11] This is troubling because previously considered evidence can be thrown into new light by later developments, and we are concerned that Clause 3 could restrict the effectiveness of subsequent investigations. This Clause also appears to contradict ECtHR case-law, which specifies that even after a significant lapse of time the obligation on the state to carry out an Article 2 compliant investigation remains. [12]

In England and Wales, consent from the Attorney General would need to be sought in order to proceed with criminal proceedings for crimes committed by UK forces overseas more than five years previously. [13]

How would the amendments address these issues?

Amendment 55 would significantly improve the Bill’s adherence to the principles of fairness and equality before the law by removing the statutory ‘presumption against prosecution’ provided for in the Bill.

Failing this, amendments 25-28, would alter the ‘presumption against prosecution’ so that it only applies ten years after the date of the alleged conduct. Amendment 14 would further alter the Bill so that the clock begins on ‘the day on which the first investigation relevant to the alleged conduct concluded’, rather than "the day on which the alleged conduct took place". While these amendments would not remove the unlawful ‘statute-of-limitations’ effect from the Bill, they would go some small way in reducing the negative impact on access to remedy and redress for victims by allowing more time for evidence to come to light and proceedings to be initiated. Even if amendments 25-28 and 14 are implemented, they must never apply in cases that engage Article 2 and 3 ECHR.

Amendments 1-5, 20, 21 and 56 alone would not fully address the elements of the Bill that favour the accused over the claimant, but would go some way towards mitigating some of their effects by improving access to redress for victims of alleged human rights abuses. This would help align the Bill with the Crown Prosecution Service’s ‘Code for Crown Prosecutors’ (in England and Wales) and the Crown Office and Procurator Fiscal Service’s ‘Prosecution Code’ (in Scotland).

Amendment 1 would alter Clause 3(1) of the Bill to remove the specification that a prosecutor must give particular weight to the matters listed in Clause 3(2) [14] ‘so far as they tend to reduce the person’s culpability or otherwise tend against prosecution’. This would help to restore fairness and equality before the law by ensuring that the prosecutor considers the matters listed in Clause 3(2) equally, whether they tend to reduce or to increase a person’s culpability, or otherwise tend against or in favour of prosecution respectively. This would help align the Bill with the Code for Crown Prosecutors, which states that ‘[t]he greater the suspect’s level of culpability, the more likely it is that a prosecution is required’. [15]

Amendments 2-5, 20, 21 and 56 include additional matters to which a prosecutor must give particular weight when making a decision as to whether to bring criminal proceedings against a current or former member of the armed forces. These include:

· The adequacy of any investigative process to date;

· the public interest in maintaining public trust in the criminal justice system and upholding the principle of accountability of the Armed Forces;

· the nature of the alleged conduct, in particular whether it engages any of the UK’s obligations under Articles 2, 3, 4 and 5 ECHR;

· whether the person had command responsibility for the alleged conduct, and to what extent.

If passed, these amendments would help redress the balance in the Bill - which currently favours the accused - to ensure fairness and equality before the law for all parties.

By requiring the relevant prosecutor to consider whether the alleged conduct engaged Articles 2 or 3 ECHR, amendments 4 and 21 would have the additional benefit of encouraging investigations into the lawfulness of actions involving the use of lethal force or alleged torture or ill-treatment, in line with the UK’s procedural obligations under the ECHR. This would also help align the bill with the Code for Crown Prosecutors, which states that "the more serious the offence, the more likely it is that a prosecution is required" [16] and the Prosecution Code, which states that ‘[i]n general, the more serious the offence the more likely it is that the public interest will require a prosecution.’ [17]

Amendments 10 and 11 would alter the Bill so that prosecutions in England and Wales of service personnel for alleged offences committed during overseas operations would require consent from the Director of Public Prosecutions, rather than the Attorney General. This would align the Bill with the Code for Crown Prosecutors, which already requires the consent of the Director of Public Prosecutions for the prosecution of a limited number of offences. [18] As a fall-back option, amendment 24 would require the Attorney General to prepare a report containing his or her reasons for granting or withholding consent to prosecute and lay a copy of this before parliament. This would help increase accountability and transparency for decisions to grant or withhold consent to prosecute.

2.  Ensure serious international crimes are prosecuted

· We recommend support for amendments 6-9, 13 and 58-67, which would exclude additional serious international crimes from the scope of the Bill.

· We also recommend support for amendment 12, which would require that before making regulations under Clause 15(2), the Secretary of State or Lord Chancellor must lay before Parliament the report of an independent review confirming that the Act is in full compliance with the UK’s international treaty obligations with respect to the prosecution of war crimes and other crimes committed during overseas operations. The amendment would require a further report of the same nature no fewer than four years after the Act comes into force, otherwise the Act would cease to have effect.

Why are these amendments needed?

As drafted, the presumption against prosecution in the Bill applies to torture and ill-treatment, [19] and in principle to international crimes including genocide, war crimes and crimes against humanity. This is incompatible with international law, which stipulates that complaints of maltreatment must be investigated promptly and impartially by competent authorities so as to make the remedy effective, [20] and that states must investigate alleged or suspected violations of the right to life in situations of armed conflict. [21] Where there is evidence of torture and ill-treatment, states must either prosecute or extradite the alleged perpetrators. [22] The UK’s international treaty obligations explicitly require that serious international crimes such as torture, [23] genocide, [24] crimes against humanity, [25] and grave breaches of the Geneva Conventions [26] are prosecuted.

The Rome Statute of the International Criminal Court requires State Parties to exercise criminal jurisdiction over those responsible for international crimes. [27] Where states are unwilling or unable to investigate or prosecute such crimes, the ICC may do so. [28] The incompatibility of the ‘presumption against prosecution’ with international law therefore increases the likelihood of investigation by the ICC into the conduct of UK forces abroad. [29]

How would the amendment address these issues?

Amendments 6, 7 and 9 stipulate that all offences listed in Part 5 of the International Criminal Courts Act 2001 (as they relate to England, Wales and Northern Ireland) and Part 1 of the International Criminal Courts Act (Scotland) 2001 would be excluded from the scope of the Bill without restriction. This includes genocide, crimes against humanity and war crimes. [30]

Amendment 13 would exclude from the scope of the Bill offences whose prosecution is required under the UK’s international treaty obligations, such as torture, genocide, crimes against humanity and certain war crimes.

Amendments 58-67 would add grave breaches of the Geneva Conventions, offences under section 134 of the Criminal Justice Act 1988 (torture), acts of genocide and crimes against humanity to the list of excluded crimes in Schedule 1 of the Bill.

Implementing these amendments would bring the Bill in line with the UK’s obligations under international law to prosecute serious crimes. Amendment 12 would help ensure adherence to the Government’s commitment that ‘the Bill does not prevent prosecution in certain circumstances of egregious crimes committed either against humanity or our treaty obligations’. [31]

Amendment 8 is consequential on amendments 6 and 7.

3.  Ensure victims’ and service personnel’s ability to launch civil claims is not impaired

· We recommend support for amendments 15-18, which would withdraw provisions that limit courts’ discretion to determine whether to extend existing time limits for civil and human rights claims on a case-by-case basis.

Why is this change needed?

As drafted the Bill introduces a ‘long stop’ of six years on civil claims in cases of personal injury and death [32] and limits courts’ discretion to extend the one-year time limit for HRA claims where they arise in the course of overseas operations. [33] The Bill would further create an absolute prohibition on claims under the HRA being brought more than six years after the date on which the act complained of took place, or more than 12 months after the date of knowledge (if later), where they relate to overseas operations. [34]

Evidence of personal injury, death and human rights violations occurring during armed conflict can take years to come to light [35] and victims’ ability to launch civil claims can be impaired by factors beyond their control, such as prolonged periods of detention. With these considerations in mind, the Commission’s view is that attempts to limit courts’ discretion to determine whether to extend existing time limits for civil and human rights claims significantly impacts on victims’ right to a fair trial under Article 6 ECHR and their access to an effective remedy under Article 13 ECHR. [36]

Claims for negligence and breaches of ECHR rights occurring during overseas operations are most regularly taken against the Ministry of Defence by service personnel themselves, or their next of kin. [37] In reality, the six-year limitation period proposed by the Bill would therefore likely hinder the ability of service personnel and veterans to take legal action against their employer, particularly as 70 of 522 settled claims of this nature were taken more than six years after the incident. [38] This appears to contradict the Government’s stated purpose for the Bill, to provide ‘greater legal protections to armed forces personnel and veterans serving on military operations overseas’. [39]

How would the amendment address these issues?

Amendments 15-18 would allow courts to continue their current practice of regarding what is ‘equitable having regard to all the circumstances’ when determining whether to extend existing time limits for HRA claims. [40] In the case of personal injury claims these amendments would allow courts to override time limits having considered ‘all circumstances of the case’ [41] (in England and Wales) and if it seems to the court ‘equitable to do so’ (in Scotland). [42] This balanced case-by-case approach is vital in determining whether it is fair to both the claimant and the defendant for the claim to proceed. [43]

4.  Ensure that the human rights framework in the UK and internationally is protected

· We recommend the Bill is amended to remove Clause 12, which imposes a duty on the Secretary of State to consider whether to make a derogation under Article 15(1) of the ECHR in relation to any ‘significant’ overseas operations.

· At the very least, we recommend support for amendment 57, which would require significant derogations regarding overseas operations proposed by the Government from the ECHR to be approved by Parliament before being made.

Why is this amendment needed?

If passed in its current form the Bill would amend the HRA to place a duty on the Secretary of State to consider whether it would be ‘appropriate’ to make a derogation under Article 15(1) of the EHCR in relation to any overseas operations that are or would be ‘significant’. [44] The Bill does not specify in what circumstances this clause would apply, nor does it define when such a derogation would be considered ‘appropriate’. Importantly, derogations under Article 15 ECHR must align with the ECtHR’s proportionality test, namely that the measures are "a genuine response to the emergency situation ... and fully justified by the special circumstances … and that adequate safeguards were provided against abuse." [45] Derogations under Article 15 ECHR do not apply to the right to life under Article 2 or the prohibition of torture under Article 3, and so any action from the Government to derogate from the ECHR would not absolve it of its responsibility to investigate breaches of these rights by armed forces operating overseas. [46]

No Member State of the Council of Europe has previously derogated from the ECHR in the manner proposed by the Bill. Given the UK’s standing and influence in the Council of Europe, there is a risk that if this provision remains in the Bill and is acted on in the future it could set a dangerous precedent, which may be followed by other member states – in particular those with poorer human rights records than the UK’s – in relation to future conflicts.

How would the amendment address these issues?

 

An amendment removing Clause 12 from the Bill altogether would remove the duty on the Secretary of State to consider derogating from the ECHR, and as such would help protect the existing human rights framework in the UK. It would also avoid setting a negative precedent affecting the collective respect for and enforcement of ECHR rights by Council of Europe Member States.

Amendment 57 would go some way in mitigating the damaging effects of Clause 12 by ensuring parliamentary scrutiny over any future decision that impacts fundamental rights.

 

October 2020