The Overseas Operations (Service Personnel and Veterans) Bill contains three main elements:
a)A statutory presumption against prosecution after 5 years;
b)Shorter and more inflexible limitation periods for human rights violations and for personal injury claims; and
c)A duty to consider derogating from the European Convention on Human Rights (ECHR) in respect of future overseas military operations.
Investigations, inquiries and litigation into incidents arising from the UK’s involvement in the conflicts in Iraq and Afghanistan have exposed rare but serious wrongdoing, such as unlawful detention, breaches of the prohibition on torture and inhuman or degrading treatment or punishment (Article 3 ECHR) and complicity in extraordinary rendition. They also exposed poor practices, procedures or equipment on the part of the Ministry of Defence (MoD) that led to unnecessary deaths and injuries to members of the Armed Forces. It is vital that such investigations, inquiries and litigation can continue to uncover any such poor practices so that lessons are learned in order to protect both members of the Armed Forces and civilians from harm.
The Government introduced this Bill to limit the ability to prosecute for crimes after 5 years or to bring litigation against the MoD after 6 years. However, there is little to no evidence that people are being prosecuted when they should not or that cases with no case to answer are being allowed to progress. Instead, we found that the real problem is that investigations into incidents have been inadequate, insufficiently resourced, insufficiently independent and not done in a timely manner. This has resulted in repeated investigations to try to remedy the flaws of previous investigations. It is this cycle of investigations that has caused stress and uncertainty for those accused of wrong-doing as well as for victims. Those who have committed crimes cannot be brought to justice based on inadequate investigations—and those who have done nothing wrong can feel that their investigation never gets resolved due to its inadequacy leading to no final resolution. Inadequate investigations are an impediment to justice being done. We therefore conclude that the MoD must, as a matter of priority, establish an independent, skilled and properly funded service for investigations. MoD investigations must be robust, take place promptly and be sufficiently independent and of high quality in order to prevent the need for repeated or protracted investigations.
This Bill will not remove the need for those investigations to be undertaken and will not address the inadequacy of those investigations. It does nothing to address the issue of repeated investigations. Instead the Government is effectively using the existence of inadequate investigations as a reason to legislate to bring in further barriers to bringing prosecutions or to providing justice for victims. It is therefore difficult to reconcile the contents of the Bill with either its stated objective or the underlying issues.
No problem has been identified of excessive or unjust decisions to prosecute members of the UK Armed Forces. We can therefore see no justification for introducing the statutory presumption against prosecution in cases where the MoD’s own Service Prosecuting Authority considers that there is sufficient evidence that a member of the Armed Forces committed an offence and has already decided (having regard to all relevant factors) that it is in the public interest to bring a prosecution. For these reasons we consider that clauses 1–7 should be deleted.
More specifically, we have significant concerns that the presumption against prosecution breaches the UK’s legal obligations under international humanitarian law (the law of armed conflict), international human rights law and international criminal law. It risks contravening the UK’s obligations under the UN Convention Against Torture, the Geneva Conventions, the Rome Statute and international customary law. At a minimum, the presumption against prosecution should be amended so that it does not apply to torture, war crimes, crimes against humanity or genocide.
It is particularly concerning that the Bill does not provide any incentives for the military hierarchy to ensure that members of the Armed Forces who are unable to make “sound judgements”, who cannot “exercise self-control” or whose mental health is severely affected, are removed from operational duties and given the support that they need. Instead it puts in place barriers to prosecuting a person who commits a crime whilst on operations overseas even though they may have been known to lack adequate self-control or the ability to make sound judgements.
The introduction of an absolute time limit to bringing human rights claims or civil litigation risks breaching the UK’s human rights obligations and preventing access to justice, particularly in light of the well-known difficulties to bringing timely cases where conflicts may be protracted, and the situation complicated. Indeed, had an absolute time limit existed in the past this would have prevented litigation that has brought to light mistreatment of detainees by UK Armed Forces, or UK complicity in extraordinary rendition and torture. Not only would that have prevented justice in those individual cases, but it would have meant that such practices would have continued unchecked.
We also recall that there are existing powers to strike out unmeritorious claims (including those that are an abuse of process) or repeated claims brought by vexatious litigants or lawyers acting unscrupulously. We are not aware of any suggestion that the Courts have allowed wholly unmeritorious or vexatious claims through any failure or reluctance to use these powers. We call on MoD Ministers to desist from using politicised and inaccurate language in relation to claims where the MoD did have a case to answer. Moreover, in the UK, solicitors, barristers and advocates are members of a regulated legal profession with clear codes of conduct and ethical standards. Sometimes the client they represent is the Government. Sometimes it is a member of the Armed Forces, a veteran or a civilian who wishes to bring a claim against the MoD. It is not appropriate for public office holders such as Ministers to refer generally to lawyers as “ambulance-chasing lawyers” (or other politically charged and inaccurate terms) when lawyers represent members of the Armed Forces, or civilians in their claims against the MoD—many of which have been well-founded claims. The calculated and repeated use of such derogatory language against legal professions is unbecoming and should have no place in a democracy that respects the rule of law. Similarly, the use of the term “lawfare” to describe generally any litigation brought by civilians or members of the Armed Forces against the MoD to seek justice for injuries or deaths of loved ones is also inflammatory and inaccurate.
In respect of the Government’s proposed duty to consider derogating from the ECHR, we find that this provision would seem to do nothing beyond what the Minister would do in any event, but may increase the risk of litigation. We also note the limited number of rights that could be capable of derogation in respect of any war. We call on the Government to make an undertaking to consult with the Committee in advance of any proposed derogation and to provide the Committee with a memorandum to assist its consideration of any proposed—or actual—derogation.
Finally, we note with concern the impact that the introduction of this Bill has already had on the reputation of the Armed Forces and of the UK internationally. We urge the Government to consider carefully the message that this sends to troops about accountability and compliance with the rule of law, including both international humanitarian law and international human rights law. We also urge careful consideration of the impact that this may have on relationships with civilians in host countries. Compliance with the relevant international standards is all the more important where the stated purpose of deployment is to further respect for the rule of law and human rights standards.
Published: 29 October 2020