Legislative Scrutiny: The Overseas Operations (Service Personnel and Veterans) Bill Contents

1Introduction

1.The Overseas Operations (Service Personnel and Veterans) Bill (OO Bill) was introduced in the Commons on 18 March 2020. The main provisions of the Bill are:

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.

Background: Key human rights issues at stake

2.A number of human rights issues are raised by the provisions in the Bill seeking to limit liability for criminal acts or human rights violations committed in military operations overseas:

a)The duty to prosecute torture allegations under the UN Convention Against Torture;1

b)The duty to prosecute war crimes, crimes against humanity and genocide under the Geneva Conventions, and customary international law;2

c)The duty to prosecute crimes against humanity and genocide under the Rome Statute to the International Criminal Court (ICC);3

d)The procedural obligation to conduct effective investigations into deaths of members of the armed forces and of civilians under Article 2 ECHR;4

e)The procedural obligation to conduct effective investigations into allegations of torture or mistreatment under Article 3 ECHR;5

f)The right to an effective remedy for a breach of human rights (Article 13 ECHR);6

g)Risk that cases involving UK service personnel will need to be tried before the ICC in the Hague rather than before British courts.

3.Given the Committee’s significant concerns with the Bill’s compatibility with human rights and international humanitarian law, the Annex contains a number of suggested Committee amendments to the Bill.

Overview

Timetable

4.The OO Bill was introduced into the House of Commons on 18 March 2020 and was debated at Second Reading in the Commons on 23 September. Whilst there is much support for greater legal protections for service personnel and veterans, during its Second Reading a number of Members expressed concern that the Bill risks breaching the UK’s international legal obligations, placing the Armed Forces above the law, and that the proposals do more to protect the Ministry of Defence (MoD) than members of the Armed Forces. At the time of writing the Bill was in Public Bill Committee which was expected to Report to the House on Thursday 22 October 2020. At the time of publication, the Bill should be awaiting its Report stage in the House of Commons.

5.The Committee launched an inquiry on 27 July 2020. We received 32 pieces of written evidence and heard from witnesses, Reverend Nicholas Mercer, former Command Legal Advisor, UK 1st Armoured Division, Iraq War; Elizabeth Wilmshurst CMG, Distinguished Fellow, Chatham House, specialist in international law; Mark Goodwin-Hudson, former British Army Officer and head of the NATO Civilian Casualty Investigation and Mitigation Team in Afghanistan in 2016; and Martyn Day, Solicitor and Partner at Leigh Day; as well as from the Parliamentary Under Secretary of State for Defence, People and Veterans, Johnny Mercer MP; the MoD Minister of State Baroness Goldie; Damian Parmenter CBE, Director of the Defence & Security Industrial Strategy, MoD; and Katherine Willerton, Deputy Director and Head of the General Law Team, MoD legal advisers.

Government’s policy position

6.The Government states that the purpose of this Bill is “to provide greater certainty for service personnel and veterans in relation to vexatious claims and prosecution of historical events, that occurred in the uniquely complex environment of armed conflict overseas.”7

7.The Government suggests that this Bill is necessary “to address issues that have partly arisen from the unforeseen expansion of the European Convention on Human Rights (ECHR) to cover overseas military operations.” The Government’s proposals are framed as addressing “lawfare”, or the judicialization of war, and what the Government perceives as excessive civil claims against the MoD and criminal prosecutions of service personnel/veterans.8

8.This Bill follows a MoD consultation launched in July 2019 which set out three key proposals:

a)a statutory presumption against prosecution for alleged offences committed on overseas operations more than 10 years ago [reduced to five years in the Bill]

b)creation of a new partial defence to murder [not included in the Bill];

c)a time limit on civil litigation claims for personal injury/death [reflected in the Bill].9

9.The Chair of the JCHR wrote to the Secretary of State for Defence in relation to this consultation on 23 October 201910 and we received a reply to this letter.11

Background

10.There have been a number of investigations and inquiries into incidents arising from the UK’s involvement in the conflicts in Iraq and Afghanistan, including some allegations of offences committed by British serving personnel. According to the evidence submitted to this inquiry, due to the inadequacy of the MoD’s system for investigating allegations, many investigations have been protracted and repeated. This has had unfortunate consequences for all involved and has not served the interests of justice. However, the evidence indicates that the problem lies in the inadequacy of MoD investigative processes and systems rather than the criminal or civil courts. The (rather limited) available litigation statistics are set out in the Appendix to this Report. Critics of the Bill have raised the point that the Bill fails to address the real root cause of the problem.12 This is explored further in Chapter 2.

Scope of Bill

11.The Bill applies to litigation relating to military operations overseas (i.e. outside of the British Islands), including peacekeeping operations and operations for dealing with terrorism, civil unrest or serious public disorder, in the course of which Her Majesty’s forces “come under attack or face the threat of attack or violent resistance”.13 It therefore goes much wider than traditional “international armed conflict” situations.

12.The provisions in the Bill relating to prosecutions apply in respect of the Armed Forces and the British Overseas Territory Forces when operating with the UK Armed Forces in overseas operations.

13.The Bill extends to England, Wales, Scotland and Northern Ireland. However, it is important to note that the substantive provisions of this Bill do not apply to the conflict in Northern Ireland—the Government intends to deal with this in separate, forthcoming legislation.

Summary of the key elements of the Bill

The statutory presumption against prosecution of service personnel/veterans after 5 years: Clauses 1–7 of the Bill

14.The Bill introduces a so-called “triple lock” against prosecutions after five years from the date of the alleged criminal conduct:

a)Firstly, the Bill introduces a presumption against prosecution of members of the Armed Forces after five years from the date of the alleged criminal conduct,14 following which a prosecutor can only proceed with a prosecution if it is “exceptional”;15

b)Secondly, in making a decision whether to prosecute after 5 years, certain matters must be given “particular weight” by the prosecutor. The matters are:

i)the adverse effect (or likely adverse effect) of the conditions during the operation on the ability of members of the Armed Forces to make sound judgements, to exercise self-control, or any other impact on their mental health;16 and

ii)in cases where there has been a previous investigation and no compelling new evidence, there is a public interest in finality being achieved without undue delay.17

c)Thirdly, the consent of the Attorney General is required to prosecute after the expiry of the five-year period.18

15.The statutory presumption against prosecution only applies in respect of “relevant offences”.19 The definition includes service offences under section 42 of the Armed Forces Act 200620 and all criminal offences except those that are specifically excluded by virtue of Schedule 1 (i.e. sexual offences). This means that there would be a statutory presumption against prosecution in relation to torture, murder, genocide, war crimes and crimes against humanity.

16.Any alleged offences committed by service personnel (or veterans who were service personnel at the time of the conduct) against a member of the Armed Forces (including forces from British Overseas Territories), a Crown Servant or a defence contractor are also excluded from the definition of a “relevant offence” (i.e. offences committed within the Armed Forces are excluded from the scope of the Bill). So, there is a difference in treatment depending on whether the victim is another member of the UK Armed Forces or not.

Amendments to limitation periods for claims under the Human Rights Act and claims in tort: Clauses 8–11

17.Claims under the Human Rights Act 1998 (HRA) are currently subject to a time limit of one year, subject to an extension if “equitable having regard to all the circumstances” (s. 7(5) HRA). The Bill introduces an absolute maximum of six years with no further extension even where an extension would be equitable in the circumstances. If, however, the date of knowledge21 of the alleged human rights violation is later than the six-year time limit, the victim may still bring a claim within 12 months of the date of knowledge.22

18.The Bill also qualifies the courts’ discretion to extend the time limit beyond one year by introducing a requirement that the Court must have regard to:

a)the cogency of the evidence after such a period of time, with reference to the ability of the service personnel/veterans to remember events and the extent of dependence on memories; and

b)the likely impact of proceedings on the mental health of any potential Armed Forces witness.23

19.Claims in tort for personal injury or death are currently subject to a limitation period of three years subject to judicial discretion to extend that period. The Bill amends the law on limitation periods by introducing an absolute maximum time limit of six years with no further extension allowed. It also introduces new factors to which the court must have regard when exercising discretion as to time limits (in particular the effect of the delay on the likely cogency of any evidence adduced, and the likely impact of the proceedings on the mental health of the witness (or potential witness) who was at the time a member of the Armed Forces).

Duty to consider derogation from the European Convention on Human Rights: Clause 12

20.The Bill amends the HRA to place an ongoing duty on the Secretary of State to consider derogating from the ECHR in relation to any future overseas operations.24

Amendments to the Human Rights Act 1998

21.The Bill, therefore, amends the HRA in two respects:

a)It inserts a new section 7A into the HRA to introduce an absolute bar on claims relating to overseas operations under the HRA after six years (unless the date of knowledge is later). It also limits judicial discretion to allow a claim in respect of a human rights violation more than one year after the facts, by introducing new factors to which the courts must have regard in exercising its discretion.25

b)It inserts a new section 14A into the HRA to impose on the Secretary of State an ongoing “duty to consider derogation” from the ECHR in the context of overseas operations.


1 A presumption against prosecution without the possibility of further discretionary extension could prevent victims of torture from seeking their right to redress, guaranteed under Article 14 of the UN Convention Against Torture (CAT). The United Nations Committee Against Torture has confirmed that the imposition of a limitation period for the offence of torture is inconsistent with a State Party’s obligations under the CAT. There are therefore real risks that the limits on bringing prosecutions will cause the UK to be in breach of its obligations under the UN Convention Against Torture.

2 The International Committee of the Red Cross (ICRC) takes the view that customary international humanitarian law prohibits the application of statutes of limitation to war crimes. See ICRC Customary IHL Study, Rule 160

3 Article 29 of the Rome Statute, to which the UK is a State Party, states that crimes within the jurisdiction of the International Criminal Court (ICC) shall not be subject to any statute of limitation.

4 The UK is under a non-derogable procedural obligation under Article 2 and 3 ECHR (right to life) to conduct effective investigations into deaths. This procedural obligation can include criminal investigations (where appropriate) as well as inquests and inquiries. Indeed this procedural obligation has been a vital tool for the State to learn lessons and therefore to prevent future avoidable deaths e.g. relating to military equipment. Moreover, this obligation does not stop after a 5–6 year period.

5 The UK is under a non-derogable procedural obligation under Article 3 ECHR (freedom from torture or degrading or inhuman treatment or punishment) to conduct effective investigations into allegations of torture or inhuman or degrading treatment or punishment. This procedural obligation can include criminal investigations (where appropriate) as well as inquiries. Moreover, this obligation does not stop after a 5–6 year period. Similar procedural obligations exist under UNCAT.

6 Article 13 ECHR provides that “[e]veryone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority.” However, such remedies will be prevented under the Bill.

10 Letter to Rt Hon Ben Wallace MP, Secretary of State for Defence, regarding MoD proposed changes to legal responsibility for actions by UK Armed Services, dated 23 October 2019

11 Letter from Rt Hon Ben Wallace MP, Secretary of State for Defence, to the Chair, regarding the introduction of the Overseas Operations (Service Personnel and Veterans) Bill, dated 15 June 2020 although the letter was not received until 2 July 2020

12 For example, see evidence from the Centre for Military Justice (OOB0017), Mark Goodwin-Hudson (OOB0022), Emeritus Professor Francoise Hampson (OOB0011)

20 The Armed Forces Act 2006 sets out offences that can be committed under service law.

21 Date of knowledge means the date on which the person bringing the claim first knew, or ought to have known, of the act complained of and that it was an act of the MoD or Secretary of State for Defence.

22 Overseas Operations (Service Personnel and Veterans) Bill, Clause 11(2) (inserting a new section 7A into the HRA)

23 Overseas Operations (Service Personnel and Veterans) Bill, Clause 11(2) (inserting a new section 7A into the HRA)




Published: 29 October 2020