Overseas Operations (Service Personnel and Veterans) Bill

Supplementary written evidence submitted by Dr Jonathan Morgan, Reader in English Law, University of Cambridge (OOB09)

When giving evidence at the public evidence session on 6 October 2020 I was asked how I would improve the Bill. I indicated that there was both a large answer (i.e. starting afresh) and a more modest answer (i.e. improving the current text). In my oral evidence I touched briefly on the former but didn’t reach the latter in any detail. Therefore, I have prepared the following expanded note which the Bill Committee might find useful. It also provides further references for my comments in evidence.

Summary

(1) Duty to consider derogating from the ECHR in armed conflicts. This duty is welcome (Bill Clause 12). However, the Bill should also restate combat immunity in tort claims alongside an expanded scheme for no-fault compensation for personnel injured in overseas operations. It is regrettable that while both these policies were contained in a Ministry of Defence consultation in 2016, the Government has now announced that it will not take the proposals forward in legislation "at this time". The present Bill should also enact these two policies if it is to achieve the objective of preventing tort and human rights litigation about decisions taken during, or in preparation for, armed conflict.

(2) Civil claims (Part II of the Bill). It is not clear that the reforms would achieve their objectives (restricting vexatious compensation claims that falsely allege military incompetence or abuse). The basic point is that such spurious claims may be brought promptly, and promptness does not mitigate their spurious nature. Whereas the Bill could restrict genuine claims from (e.g.) injured service veterans. This seems undesirable and unrelated to the objective. A more nuanced approach would ensure that genuine claims were not inadvertently precluded by an absolute "long stop". A presumptive rather than absolute six-year cut-off would preserve a discretion for the courts to permit genuine cases to proceed if good reasons explain the delay. As the High Court’s recent refusal to extend the limitation period to claims about the Kenyan Emergency of the 1950s shows, courts currently exercise their discretion to extend limitation periods sensibly. The case for replacing the court’s discretion with an absolute cut-off is not clear. As for wider concerns about the intrusion of tort (compensation claims) onto the battlefield, the correct remedy is not shorter time limits for claims but (as outlined above) to restate combat immunity and replace tort litigation with enhanced no-fault compensation.

(3) Prosecutions after more than five years (Part I of the Bill). These are the most important and most controversial proposals. Such a time limit would be novel in UK law (albeit imposed presumptively and not an absolute statute of limitations). It is not clear that this novel approach would achieve its objectives. The real concern seems to be about endless cycles of investigations (and re-investigations), rather than repeated (or very delayed/ stale) criminal prosecutions alone. A reform addressed to that problem needs to prohibit prosecutions and all other kinds of official investigations about an incident that has already been investigated, unless compelling new evidence emerges. Repeated criminal prosecutions are already rightly prevented by the double jeopardy rule. An analogous rule should be introduced to cover other kinds of investigations.

Concerns (and Objectives): The Basis for Reforming Legislation

1. Unpacking the various concerns about ‘lawfare’, a number of related but ultimately discrete problems emerge. It is worth setting them out because the solutions differ.

a. Extension of ECHR into armed conflict situations (and commensurate erosion of common law ‘combat immunity’ in tort).

b. Spurious compensation claims against the Government alleging (for example) mistreatment by UK armed forces.

c. Ongoing cycles of investigations and re-investigations of alleged criminal behaviour, leading up to (and potentially continuing after) criminal prosecutions.

2. There seems to be wide political consensus at least around (b) and (c)-these received considerable attention in the Second Reading debate. But I fear that these objectives will be achieved only incompletely by the Bill as it stands. Yet the Bill would also create certain new problems, as outlined below. Nor does the Bill address (a) satisfactorily, although the duty to consider derogation does so in part.

Concern (a)

Extension of ECHR (and erosion of common law ‘combat immunity’)

3. It is widely suggested (albeit contested by many lawyers) that the Strasbourg human rights court’s extraterritorial extension of the ECHR-i.e. to military operations outside Europe-has caused serious operational and legal difficulties for the armed forces. [1] Should Parliament share this concern, the correct response is to address the ECHR’s application to (future) military operations; and also (for tort/compensation claims) to revive or restate the principle of combat immunity.

4. Yet virtually none of the present Bill addresses such matters. (It concerns criminal prosecutions and time limits for civil (tort) claims.)

5. Clause 12 does address the concern, in part, by requiring the Government to consider making a derogation from the ECHR in future ‘significant overseas operations’ (subject to the conditions in Article 15 ECHR and using the existing procedure in the Human Rights Act 1998). Such a derogation would (very broadly speaking) restore the military-legal understanding as it prevailed until the decision in Al Skeini v United Kingdom: [2] namely that the ECHR applies only within the territories of the contracting states (i.e. only within the Council of Europe). But even a successful derogation would fail to achieve a total "restoration", insofar as certain articles of the ECHR cannot be derogated from. [3] Secondly, any derogation would (I think inevitably) be subject to judicial challenge and the Government would have to convince the reviewing courts that the derogation was "strictly required by the exigencies of the situation" (Article 15(1) ECHR).

6. While the view of (e.g.) Lord Bingham was that the condition of a threat to "the life of the nation" could scarcely be satisfied in overseas peacekeeping missions, [4] we should note that notwithstanding his immense authority Lord Bingham gave this opinion prior to the extraterritorial application of the ECHR in Al Skeini v United Kingdom. Since that expansion, senior judges have suggested that a "threat to the life of the nation" ought to include "the nation" in which UK forces have been deployed; viz that the ECHR’s extraterritorial application should be mirrored by an extraterritorial understanding of the derogation provisions in article 15. [5] This is a persuasive argument but there is no clear legal authority on point. Derogation would face concerted legal challenge.

7. Another possibility would be to amend the Human Rights Act 1998 to make clear that UK courts cannot entertain extraterritorial claims. However, as the MOD has noted, this would not prevent complainants from taking their case directly to the European Court of Human Rights in Strasbourg. [6] In other words while it is in Parliament’s power to restore within the UK legal system the pre-Al Skeini position (i.e. the Bankovic v Belgium (2001) position) on the ECHR’s geographical reach, Parliament cannot unilaterally alter the Strasbourg Court’s view. So, while restricting the HRA’s geographical application to UK territory would prevent domestic challenges, it would not prevent European-level ECHR challenges (and indeed might encourage applicants to proceed straight to the European Court in Strasbourg, given the removal of domestic jurisdiction).

8. Assuming that a derogation from the ECHR was made in a future conflict and survived legal challenge, there could nevertheless still be judicial scrutiny of decisions about military training and equipment (and perhaps strategic decisions made away from the heat of battle). The Supreme Court’s decision in Smith v Ministry of Defence opened the way for such matters to be litigated as part of a tort claim demanding compensation for negligence. [7] (For a powerful analysis of the problems with such judicial review of sensitive military decisions, see Lord Mance’s dissenting judgment in the Smith case itself.) Hence derogation should be complemented by a restatement of the combat immunity principle.

9. This need not require legislation. The Government has existing statutory powers to revive the Crown’s historic immunity for "warlike operations … outside the UK": section 2, Crown Proceedings (Armed Forces) Act 1987.

10. As I have previously argued, [8] were combat immunity to be revived like this then, to ensure that injured service personnel were not made worse off, the Armed Forces Compensation Scheme should be reformed to provide full, tort-level compensation on a no-fault basis for those injured during overseas combat. The justification for treating one group of injured personnel more generously within the AFCS would be the curtailment of their ordinary rights to claim in tort, i.e. during overseas operations.

11. Notably the Ministry of Defence made similar proposals in a 2016-17 consultation. [9] It had proposed (1) "compensation … equal to that which a Court would have awarded if the Government had been negligent" for personnel "injured in the course of combat"; alongside (2) legislation "to enshrine the Government’s position that Combat Immunity should apply to deaths or injuries which occur in the course of combat". [10] I reiterate my view that reviving combat immunity is an important companion policy to derogation from the ECHR. In turn, full compensation through the AFCS (or some other no-fault mechanism) would be an important counterpart of reviving combat immunity. I strongly support the Government’s 2016 proposals.

12. It is therefore regrettable that the MOD has recently stated that legislation on these matters will not be forthcoming "at this time". [11] Its previous proposals about restating combat immunity and improving no-fault combat compensation should be contained alongside the duty to consider derogation in the present Bill. Even if a successful derogation from the ECHR was made in future armed conflict, it would not prevent judicial scrutiny of military decisions through negligence claims in tort, under Smith v Ministry of Defence.

Concern (b)

Spurious compensation claims against the armed forces

13. There is again widespread acceptance that many spurious claims of mistreatment or incompetence have been brought against the armed forces in the wake of the Iraqi and Afghan operations. Most notoriously claims associated with Phil Shiner (later struck off as a solicitor) and the grave allegations ultimately dismissed in the Al-Sweady inquiry as "wholly and entirely without merit or justification". It would be naïve not to accept the real risk that (quite apart from perceptions of lawyers enriching themselves by encouraging litigation) there could be concerted attempts to discredit the UK military by inventing such allegations. There is understandable concern about such claims, and cross-party support for addressing them was evident in the Second Reading debate.

14. Against this, however, is the possibility that real cause for complaint (and actual tortious liability) does sometimes exist. That has been true in the past and could always recur in future, however rarely we hope such cases will be. Regarding such genuine claims we should recall the important conclusion of Mr Justice Elias’s judgment in Bici v Ministry of Defence (2004):

The British Army can justifiably be proud of the operation it carried out in Kosovo. It helped to bring peace to a scarred and deeply divided community, and will have saved countless lives. It displayed professionalism and discipline of the highest quality. The soldiers on the ground had to carry out difficult and highly responsible tasks which required a combination of courage and sensitivity. In general, they discharged their duties with considerable credit. But soldiers are human; from time to time mistakes are inevitable, and even the most rigorous discipline will crack. In this case the fall from the Army’s usual high standards led to tragic consequences for the victims and their families. The Queen’s uniform is not a licence to commit wrongdoing, and it has never been suggested that it should be. The Army should be held accountable for such shortcomings, even where the victims are from the very community which has benefited so much from the Army’s assistance. A proper system of justice requires no less. [12]

15. The real problem becomes sorting such genuine grievances from the spurious ones. An indiscriminate filter would bar genuine claims, unacceptably removing the government from being held to account through the law of tort. A targeted mechanism to filter out spurious claims alone is required.

16. The Bill (Part II) discriminates using the metric of time. It aims to restrict claims being initiated a long time after the injuries in question occurred. But time (or delay) seems to be a factor of questionable relevance. While the Bill would prevent stale historic allegations being ventilated through tort or human rights litigation, it is not old claims that have generated the widespread disquiet described above. For example, it seems that at least a large proportion (and perhaps even all) of the notorious Shiner and Al-Sweady claims were initially made within the standard limitation period, and would not have required an extension of time beyond the six-year cut-off that the Bill would introduce. Thus, had it been in force at the time, the Bill would have done nothing to deter those claims.

17. Fundamentally, the Bill’s strategy (targeting very old claims) does nothing to tackle allegations that are both prompt and spurious.

18. Yet the Bill could rule out some entirely genuine claims from (for example) service veterans. For example, consider a degenerative disease contracted while serving overseas. It might initially present such mild symptoms that a compensation claim wouldn’t seem worth the candle. But many years later an initially minor degenerative condition could have become much more severe, so that the sufferer wished to claim compensation. The Bill could bar such claims. Although the clock starts to run only when the claimant has "knowledge" of the injuries, [13] in this particular example that point might be when the (initially mild) symptoms first emerged-so that by the time of the subsequent deterioration, the ordinary three-year limitation period could have expired. Under the present law the claimant could invite the court to extend the limitation period using the discretion in s.33 Limitation Act 1980. The Bill would prevent any extensions past six years from the date of knowledge.

19. Such situation might not occur very often-but nor are they fanciful. The problem is that the Bill would introduce an absolute cut-off: claims would have to be initiated no later than six years from the relevant date (i.e. the claimant’s knowledge about the injuries). The Bill’s amendments to the Limitation Act would remove the court’s residual discretion to grant longer extensions of time to address such hard cases.

20. To avoid such unintended consequences, the Bill should in my view be softened somewhat. Instead of placing an absolute prohibition on extensions of time of more than six years, the Bill could create a presumption: that only exceptionally should extensions of time over six years be granted. (In this respect, the tort provisions in Part II could mirror what the Bill currently says about criminal prosecutions in Part I.)

21. It is true that retaining judicial discretion would mean less certainty than the Bill currently proposes (albeit that under my suggested amendment the current discretion would be further structured and confined). But it is not clear whether the objectives justify the costs that an absolute (six year) bar would impose on genuine claimants.

22. First, as noted, the Bill does nothing to address spurious claims which have been brought promptly, as they easily could be. (Indeed claims launched with the aim of discrediting UK forces’ reputation are more likely during the currency of the conflict-i.e. would probably be brought "in real time" rather than as historic claims.)

23. Secondly, there seems to be no evidence of a particular problem with spurious historic claims. The current Limitation Act seems adequate to confront the obvious problems with very stale claims. On the rare occasions that such cases have been brought, the courts have exercised their discretion sensibly. In the recent leading case of Kimathi v Foreign and Commonwealth Office, the High Court refused to extend the limitation period to entertain allegations about mistreatment during the Kenyan / Mau Mau Emergency of 1952-1960. [14] Mr Justice Stewart reasoned as follows: the delay was extremely substantial; there was no good reason for that lengthy delay; the delay significantly depleted the cogency of the evidence; it severely affected the government’s ability to defend the claim. Accordingly, the court held it would be inequitable to extend the limitation period, and the claims failed for being brought out of time. Of course, the present Bill would have provided another route to that conclusion, but the Kimathi case indicates that the discretion to extend time limits is anyway exercised prudently in "historic" claims of military misconduct.

24. There are real problems about the extension of tort claims into active combat situations, and the potential for deliberately falsified claims brought to discredit the armed forces (in short, concerns about ‘Lawfare’). In my view however, altering the limitation period for tort (and Human Rights Act) claims does little to solve these problems. As argued above, the Government should pursue its 2016 proposals on combat immunity and "better combat compensation". These would tackle the ‘Lawfare’ concerns directly. Reducing limitation periods will, I fear, do little to address the concerns.

25. I have so far addressed the proposed absolute six-year bar on claims. I have no similar concerns about the other proposals in Part II. It seems entirely appropriate that the court, when invited to extend the limitation period in such cases, should consider the "operational context" (as defined in the proposed new subsections 33(5A) and 33(5B) to be inserted into the Limitation Act 1980).

26. Stepping back from the detail, it is worth pointing out that limitation periods are a long-established feature of civil claims (by contrast with criminal law, discussed below). They are not objectionable in principle. The Government already benefits from significantly shorter limitation periods when its decisions are challenged through applications for judicial review or under the Human Rights Act 1998. [15] There are also examples of absolute time bars in tort claims. For example the latest that a claim can be brought regarding a defective product under the Consumer Protection Act 1987 is ten years after it was put into circulation by the manufacturer. [16] Notably (and notoriously) this rule is stricter than that proposed in the Bill because the ten year cut-off prevents claims being brought even when the defect has not yet become apparent, the product has not yet caused an injury, or the claimant is not yet aware of the injury. Part II of the Bill does not change the rule that in negligence claims time starts to run only when the claimant has knowledge of the injury (which could be years after the defendant’s negligent conduct in cases of latent diseases).

27. But even accepting that the Bill follows well-established practice on limitation periods, and is less restrictive than some other limitation rules, is the proposed six-year cut-off justified (either in the presumptive form that I have suggested above, or in the absolute form that the Bill currently contains)? It seems doubtful because shorter time limits do little to address the genuine problems presented by vexatious claims and judicial review of combat decisions through negligence litigation.

28. Finally, I would question one argument that has been made elsewhere against the proposed reform of civil liability. Critics have suggested that Part II of the Bill is designed to protect the MOD rather than service personnel. In one sense this is correct-in tort claims the Government is always the de facto defendant and it pays for any compensation awarded. (Indeed under the HRA it would be impossible to sue soldiers etc individually since they are not a "public authority".) Thus, from the purely financial perspective it is correct that the MOD has the most to gain from the proposed reforms. But that is not the only dimension. When claims allege negligence (or graver misconduct) by service personnel, it is the relevant individuals who would face cross-examination about their actions during combat or in preparation for it. The MOD would be vicariously liable and ultimately required to pay the damages. But it is individual personnel who would face scrutiny about their combat decisions. Restrictions on civil claims restrict the potential for such investigations within tort or human rights cases. (It is for this reason that I have proposed a revival of substantive combat immunity: see previous section.)

Concern (c)

Ongoing cycles of investigations into allegedly criminal behaviour

29. Part I of the Bill contains the most important and controversial proposals. It would direct prosecutors that only in "exceptional" cases should criminal proceedings be brought more than five years after an alleged offence committed on "overseas operations" (Bill Clause 2 ("Presumption against prosecution")).

30. Again, my primary criticism is that these proposals do not directly address the major source of concern. There are well-founded concerns about the impact of repeated cycles of investigations (and re-investigations) on conflict veterans (and the consequent "chilling effect" on personnel deployed in future operations). But a five-year presumption against prosecution addresses such concerns only incompletely. At the same time, it produces a number of fresh problems (as many critics have noted).

31. The core problem is with repetitious and indefinite (re-)investigation of allegations-rather than repeated prosecutions in the narrow sense. It is, of course, already impossible to bring a further criminal prosecution against a defendant who has already been tried in court for the same offence. [17] This important protection against oppressive repeated prosecutions is the "double jeopardy" rule. However no parallel principle prevents repeated investigations outside the limits of criminal procedure. Hence the notorious cases of multiple re-investigations of allegations of mistreatment in Iraq.

32. A current example is Major Robert Campbell, recently cleared of causing the death of Said Shabram in Basra in 2003 after eight separate investigations, over 17 years. [18] Such prolonged and repeated investigations are understandably condemned on all sides. But the Bill would not necessarily have protected someone in Maj Campbell’s situation. Not all of the investigations into Maj Campbell’s conduct related to potential criminal charges. Indeed, the Iraq Fatalities Investigations (which finally exonerated Maj Campbell in 2020) are expressly "not concerned with determining civil or criminal liability", the Attorney-General having undertaken that no evidence given to the IFI would be used in any subsequent criminal proceedings. [19]

33. The present Bill would (presumptively) protect personnel from prosecutions after five years. But there appears to be little concern about historic prosecutions following overseas operations. Nor is the concern precisely about repeated investigations that culminate in eventual criminal trials. Were investigations undertaken solely to determine whether criminal proceedings should be brought, restricting prosecutions after five years would of course discourage investigations after five years too. That is, by directly restricting delayed prosecutions the Bill could be said indirectly to restrict lengthy or repeated investigations too. This argument has been made by the Secretary of State for Defence. [20] However, as Maj Robert Campbell’s case suggests and as the remit of the Iraq Fatalities Investigations demonstrates, investigations may continue (and be revived or repeated) even when there is no prospect of criminal proceedings.

34. In short, if the real problem is repeated investigations of alleged misconduct during overseas operations, reforming legislation should address that problem directly. [21] The present Bill does not. Its focus on prosecutions is at best an indirect and incomplete solution to the problem. Its basic rationale is therefore questionable.

35. Focusing on the detail, certain other provisions in the Bill seem justified and proportionate-indeed their scope seems too limited. The "Matters to be given particular weight" in prosecutorial decisions (Bill Clause 3) seem incontestable; it would be concerning if prosecutors did not already take them into account. A statutory duty to ensure that prosecutors consider them could bring reassurance about the decision-making process. However, it must be asked why these matters should be given weight only after five years. The unusual difficulties of armed combat may doubtless "tend to reduce the person’s culpability or otherwise tend against prosecution"-but that tendency seems entirely unrelated to the period of time between the alleged offence and the prosecutor’s decision. Similarly, "the public interest in finality" seems to be engaged whenever there has been "a relevant previous investigation and no compelling new evidence has become available". A previous investigation would equally "tend against prosecution" even where less than five years had elapsed since the alleged offence (absenting new evidence). In short it is not clear why prosecutors should be directed to consider the matters defined in Clause 3 only once five years have elapsed.

36. I accept (of course) that the time between alleged offence and prosecution decision is also a relevant consideration. There is clearly a public interest in "finality (as regards how the person is to be dealt with) being achieved without undue delay" (Bill Clause 3(2)(b) (emphasis added). Obvious reasons in favour of prompt criminal justice include the reliability and completeness of evidence (witness recollections, documentary records, etc) and the general requirement of fairness. As Article 6(1) ECHR states: "In the determination of … any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time…" (emphasis added). Thus, prosecuting authorities already should take delay into account in deciding whether to bring criminal proceedings. To some extent therefore the Bill is building on existing principles.

37. However, UK law has not previously laid down precise time periods within which criminal prosecutions have to be brought (admittedly as a presumptive not absolute requirement in Part I of the Bill). This is in contrast with civil (compensation) claims where limitation periods are (as discussed above) a long-established feature.

38. The very novelty of Part I, introducing fixed time limits after which criminal prosecutions would become "exceptional", seems to demand a strong justification (by contrast with the amendment of existing civil limitation periods in Part II). Part I also departs from international practice insofar as those jurisdictions which generally recognise limitation periods for criminal charges extend their availability to all categories of defendants. I am not aware of special time limits for military prosecutions in other jurisdictions. Part I is thus novel in both UK and international criminal procedure.

39. As explained above, I am doubtful whether a strong justification for Part I in its present form is available. There is a mismatch between the "mischief" to be addressed and the presumptive requirement for prosecutions within five years.

40. Adding delay to the matters to be "given particular weight" in Clause 3 would certainly be justified. But trying to define unacceptable delay in the abstract as five years (or any other fixed period) is bound to be inexact and indeed somewhat arbitrary. What constitutes an undue delay depends on an assessment of various factors which will vary considerably from case to case.

41. It is true that the five-year limit is not a sharp cut-off (compare Part II of the Bill on tort claims) but only a presumption against later prosecutions. It would be exaggerated to describe this as "immunity" from prosecution. Nevertheless, the Bill by providing that prosecutions after five years should occur only "exceptionally" seems to intend a heavy presumption. The heavier the presumption against prosecutions, de facto the closer the system moves towards substantive immunity.

42. To that extent therefore, criticisms that the Bill creates "immunity" for offences during overseas operations have some validity. Other critics have developed these points so I can rehearse the arguments briefly. First and fundamentally (and as everyone accepts), the Rule of Law and International Humanitarian Law require that military personnel should face criminal justice and should not enjoy special status-based immunity. Secondly and more specifically, the UK’s international law commitments require it to investigate and prosecute war crimes. To the extent that the Bill breaches the former requirements, it violates constitutional principles and risks the UK’s international reputation, in particular that of UK armed forces. To the extent that the Bill approaches de facto immunity from domestic prosecution for war crimes, it risks extradition of UK armed forces defendants to be tried in other signatory states and/or the assertion of jurisdiction to try them by the International Criminal Court. (The second risk could be addressed by making the Bill’s list of Excluded Offences (Schedule 1) coextensive with the definitions of war crimes in the corresponding international instruments.)

43. Since the Bill creates only a presumption rather than outright immunity, the assessment of harm in the last paragraph is deliberately qualified. UK prosecutors might always find credible allegations of war crimes sufficiently "exceptional" that they would bring criminal proceedings, even after five years. But since these are not expressly Excluded Offences in the Bill it contemplates that at least sometimes, war crimes prosecutions would not be brought because of lapse of time.

44. These risks should be weighed against the benefits that Part I would bring. I accept that there is always a public interest in finality and promptness in prosecutions. Moreover, there is a specific pressing problem about multiple repeated, elongated investigations into alleged military misconduct. But I question whether the universal desirability of prompt criminal justice can justify the Bill’s unique (albeit presumptive) five-year time limit on prosecutions in overseas conflict cases alone. The Bill would tackle the real problem of repeated investigations only indirectly. I am not persuaded that this is the right answer to a pernicious problem.

Conclusions

45. Some critics of the Overseas Operations (Service Personnel and Veterans) Bill deny that it addresses any real problems. Such critics reject all concerns about the extension of tort and human right litigation to the battlefield, or vexatious compensation claims, or repetitious investigations into alleged misconduct. Rejection of the Bill’s objectives entails rejecting the Bill itself.

46. I disagree. I fully accept that there are legitimate concerns about "Lawfare" (short-hand for the problems listed above). It is appropriate for Parliament to address concerns arising from unanticipated judicial extensions of tort and human rights laws. In that sense I have attempted to provide a friendly critique-one that accepts the underlying premises for reform.

47. However, I doubt whether the present Bill achieves its aims. Part I does not directly address the problem of repeated and prolonged investigations of misconduct. But it does create the impression of a de facto immunity from criminal accountability after five years. Part II imposes stricter time limits on tort (and human rights) compensation claims. This could inadvertently restrict genuine claims (e.g. from injured veterans) whereas fundamentally it fails to prevent vexatious claims and second-guessing of combat decisions. Such claims can as easily be brought promptly (within the Bill’s revised limitation period). Delay is not the major concern that requires to be addressed; Part II would filter out the wrong sort of claims. Finally, while it is welcome that Government policy on derogating from the ECHR in armed conflict should be given statutory force, the Bill does not go far enough. A restatement of combat immunity is also necessary to preclude judicial scrutiny of sensitive military decisions through tort (negligence) claims, alongside enhanced no-fault compensation to safeguard the position of injured veterans and personnel.

48. Reforms in this area require a careful balancing act. As all sides recognise, legal accountability remains vital even in overseas military operations. As Mr Justice Elias rightly observed, "the Queen’s uniform is not a licence to commit wrongdoing". In my opinion this Bill, although well-intentioned, does not strike the optimal balance. It would not adequately address concerns about "lawfare".

13 October 2020


[1] For a summary of such concerns, e.g. House of Commons Defence Committee, Drawing a line: Protecting veterans by a Statute of Limitations (2019).

[2] (2011) 53 EHRR 18.

[3] Article 15(2) ECHR: "No derogation from Article 2, except in respect of deaths resulting from lawful acts of war, or from Articles 3, 4 (§ 1) and 7 shall be made under this provision".

[4] R (Al-Jedda) v Defence Secretary [2007] UKHL 58, [38].

[5] Serdar Mohammed v Ministry of Defence [2014] EWHC 1369 (QB), [155]-[157] (Leggatt J) (now Lord Leggatt JSC).

[6] House of Commons Defence Committee, Drawing a line (2019) para 124.

[7] [2013] UKSC 41.

[8] R Ekins, J Morgan and T Tugendhat, Clearing the Fog of Law (London: Policy Exchange, 2015).

[9] MOD, Better Combat Compensation (December 2016). See: https://www.gov.uk/government/consultations/better-combat-compensation

[10] Foreword, ibid (Sir Michael Fallon, Secretary of State for Defence).

[11] MOD, Legal Protections for Armed Forces Personnel and Veterans Serving in Operations Outside the UK: Public Consultation: Analysis and Response (September 2020) p.4.

[12] [2004] EWHC 786 (QB), [113].

[13] Limitation Act 1980 s.11(4)(b).

[14] [2018] EWHC 2066 (QB).

[15] Rule 54.5 (Civil Procedure Rules); HRA s.7(5).

[16] Limitation Act 1980, s.11A(3).

[17] Save, exceptionally, under the Criminal Justice Act 2003, Part 10.

[18] "Nazis were treated better than me, says veteran cleared of Iraqi’s death", The Times, 3 October 2020.

[19] Baroness Hallett, Iraq Fatality Investigations: CONSOLIDATED REPORT into the death of Saeed Radhi Shabram Wawi Al-Bazooni (CP 290, 2020), 2.8-2.10.

[20] "investigators do not just investigate for investigation’s sake; they investigate to reach a point of prosecution. If they feel that a prosecution is unlikely, they will not pursue it. I feel that [the Bill] will therefore reduce the number of investigations": Commons Hansard, Volume 680, 23 September 2020.

[21] To the extent that this runs into the requirement under Article 2, ECHR that all fatalities during military operations must be officially investigated, such legislation would not be straightforward.

 

Prepared 21st October 2020