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

It is clear that some of the investigations, inquiries and litigation into incidents arising from the UK’s involvement in the conflicts in Iraq and Afghanistan have exposed wrongdoing, such as mistreatment of detainees, unlawful detention and breaches of the prohibition on torture and inhuman or degrading treatment or punishment (Article 3 ECHR). Cases have also exposed poor practices, procedures and equipment on the part of the MoD that have led to the unnecessary deaths of, and injuries to, members of the Armed Forces. Such investigations, inquiries and litigation must continue to be allowed to uncover any such poor practices, so that lessons are learned in order to prevent people—whether members of the Armed Forces or civilians—being harmed or killed unnecessarily.

The evidence indicates overwhelmingly that investigations into incidents have been inadequate, insufficiently resourced, insufficiently independent and not done in a timely manner to gather adequate evidence. This has resulted in repeated investigations to try to remedy the flaws of previous investigations. This creates stress and uncertainty for both those accused of wrong-doing and for victims. It also impedes justice as cases cannot be brought or resolved.

Investigations will still be required, despite this legislation. And the inadequacy of those investigations will not be addressed by the Bill. Furthermore, the Bill does nothing to address the issue of repeat investigations which causes distress to both alleged victims and alleged perpetrators. It is therefore difficult to reconcile the contents of the Bill with its stated objective.

The MoD must, as a priority, establish an independent, skilled and properly funded service for investigations. Investigations must be robust, take place promptly and be sufficiently independent and of high quality so that there is no longer any need for repeated or protracted investigations. (Paragraph 36) Presumption against prosecution for offences after a 5-year period: Clauses 1–7

It is difficult to understand why the MoD is legislating to limit the ability of its own prosecutors to bring prosecutions when so few prosecutions have been brought, and when there is no suggestion that prosecutions brought by the Service Prosecuting Authority have been vexatious.

There has been no suggestion that the Service Prosecuting Authority is bringing excessive or unjustified prosecutions of members against the Armed Forces, therefore we can see no justification for introducing the statutory presumption against prosecution of Armed Forces personnel. We have significant concerns that clauses 1–7 have been introduced based on a misunderstanding of the difference between (i) investigations; (ii) prosecutions; and (iii) civil claims. (Paragraph 45) 50 Legislative Scrutiny: The Overseas Operations (Service Personnel and Veterans) Bill

We cannot see any justification for introducing a statutory presumption against prosecution in cases where the Service Prosecuting Authority considers that there is sufficient evidence that a member of the Armed Forces committed an offence and has already decided that it is in the public interest to bring a prosecution. For these reasons we consider that clauses 1–7 should be deleted.

There should not be different classes of defendant or different classes of victim. We are concerned at the introduction, into the domestic laws of the United Kingdom, of a special category of defendant (i.e. members of the Armed Forces) whose victims are seemingly less deserving of justice and who are granted greater impunity for their crimes. We note that a prosecution may only be brought where there is sufficient evidence and where it is in the public interest. We do not understand why cases should not be brought against this category of defendant (i.e. members of the Armed Forces) where there is sufficient evidence of a crime having been committed by the defendant and where it is in the public interest to prosecute.

We find it unacceptable that Johnny Mercer MP, the responsible Minister, would not confirm that he thought that members of the Armed Forces should be prosecuted in respect of war crimes, crimes against humanity, genocide or torture where the Service Prosecuting Authorities were satisfied that they had sufficient evidence to bring a prosecution and that there was a public interest in favour of bringing the prosecution.

We have significant concerns that the presumption against prosecution runs the risk of contravening the UK’s international legal obligations under international humanitarian law (the law of armed conflict) and international human rights law. In particular, 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.

We are deeply concerned that the introduction of a presumption against prosecution may mean that members of the British Armed Forces are at risk of being prosecuted either in another State or before the International Criminal Court. This is a real risk if it is considered that this presumption (combined with the existing concerns about the inadequacy of MoD investigations) leads other States or the ICC to conclude that the UK is unwilling or unable to investigate and prosecute for war crimes.

We are concerned that the Bill does not provide any incentives for the military hierarchy to ensure that members of the Armed Forces who are mentally unfit to be deployed get removed from operational duties and given the support that they need. Instead it includes an impediment to prosecuting a person whose judgement may be impaired, who lacks adequate self-control or whose mental health may have been affected by deployment.

The MoD should not be sending Armed Forces personnel on deployment who are unable to make “sound judgements”, who cannot “exercise self-control” or whose mental health is so severely affected that the MoD does not consider that they should Legislative Scrutiny: The Overseas Operations (Service Personnel and Veterans) Bill 51 be responsible for their criminal actions. Moreover, if a member of the Armed Forces becomes unable to make “sound judgements”, can no longer “exercise self-control” or where there are significant concerns about their mental health, then there should be adequate systems in place to relieve that person of their operational duties, remove them from the conflict situation (where appropriate) and give them the support that they need.

The fact that a person has been deployed on operations overseas is irrelevant for considering a deadline on prosecutions. Moreover, we are concerned about the potential read across to the regular application of international humanitarian law, as well as behaviours of security forces more generally. Service personnel are trained to deal with very complex situations. It is only right that due account is taken of the complexity of a combat situation as part of any decision as to whether to bring a prosecution (i.e. is there sufficient evidence that an offence has been committed, and is it in the public interest to prosecute). However, it should not be part of a statutory barrier to bringing prosecutions where they are in the public interest.

The mental health of a defendant is already borne in mind as part of the prosecutorial decision as to whether it is in the public interest to bring a prosecution. We do not consider that there is any solid basis for including additional requirements that could risk granting de facto impunity to those who have committed crimes on the grounds that the perpetrator lacked sound judgement, or could not exercise self-control, beyond the threshold already established in criminal law. For this reason, we would recommend deleting clause 3(2)(a), 3(3) and 3(4).

There are significant concerns, that the Minister accepts, with the standard and adequacy of MoD investigations of members of the Armed Forces. And yet in this Bill the Government is effectively using the existence of potentially inadequate investigations as a barrier to bringing prosecutions—even where a prosecutor has decided that there is a sufficiency of evidence that the accused committed the offence and that there is a public interest in bringing the prosecution.

No prosecution that is in the public interest, should be prevented from being brought because of inadequate or insufficiently independent prior investigations by the MoD. Clauses 3(2)(b) and 4 of the Bill should be removed or at least amended so that they only apply to adequate, expert, independent investigations.

If an independent prosecution authority determines that it has sufficient evidence to bring a prosecution and that a prosecution is in the public interest (having regard to all the relevant factors), we do not see why the Attorney General should be given a veto over those efforts to bring someone to justice. This is all the more concerning when this may apply where the Attorney has herself previously advised on the alleged unlawful conduct and therefore may have a pronounced conflict of interest.

We are deeply concerned at the difference in treatment of victims and we note concerns that have been expressed about the “racist overtones” of this Bill. We do not accept that any offences are “understandable” depending on the nationality or employment status of the victim of an offence. (Paragraph 90) 52 Legislative Scrutiny: The Overseas Operations (Service Personnel and Veterans) Bill Limitation period for Human Rights and civil claims

The introduction of an absolute time limit risks breaching the UK’s human rights obligations and preventing access to justice. An absolute time limit of 6 years is unfair in the context of overseas operations, where potential claimants may be embroiled in protracted conflict situations, detained, displaced, or suffering from physical or psychological injuries. Indeed, had an absolute time limit existed previously it would have prevented cases that have uncovered, for example, the inhuman and degrading treatment of detainees by UK Armed Forces, or UK complicity in rendition and torture. Not only would that have prevented justice for the victims of those abuses, but it would also have meant that such practices would have continued unchecked.

Powers exist to strike out unmeritorious claims that are an abuse of process and to prevent vexatious litigants bringing repeated litigation. 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 this politicised and inaccurate language in relation to claims where the MoD did have a case to answer.

If the MoD do have valid examples where claims that should have been struck out are being allowed even when there is no case to answer, then we should properly be discussing that matter and how to minimise such risks. But we should not use the phrases merely to describe situations where there were many, contradicting witness statements (including from different members of the Armed Forces) as to whether wrong-doing had occurred. As frustrating as that may be, that can be normal in litigation.

It is essential that it is for the independent Solicitors Regulatory Authority to deal with professional misconduct not the Government (who is a party to the proceedings about which they complain).

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 could be the Government. Sometimes that client could be a member of the Armed Forces, a veteran, or a civilian who wishes to bring a claim against the MoD. It is wrong for public office holders such as Ministers to refer generally to lawyers as “ambulance-chasing lawyers” (or other politically charged and inaccurate terms) when they represent members of the Armed Forces, veterans and civilians in their claims against the MoD—many of which claims have been very well founded claims against the MoD. The calculated and repeated use of such derogatory language by Ministers towards legal professionals is unbecoming and undermines democracy and the rule of law.

Not only should the Government commit to the independence of the legal profession, but they should support such independence. This includes supporting the independent regulation of the legal profession.

Lawfare refers to the strategy using law to achieve an operational military objective. It is wholly inappropriate to use this term to refer to the application of the rule of law to determine cases where injured civilians or soldiers are seeking justice, Legislative Scrutiny: The Overseas Operations (Service Personnel and Veterans) Bill 53 or for example, seeking to determine the facts surrounding the death of a loved one. We wholeheartedly reject the Minister’s implication that UK courts, Armed Forces personnel, civilians and legal professionals are all part of some coordinated strategy to use the law as a substitute for traditional military measures to achieve an operational military objective—that is quite simply preposterous.

We call on the Minister to cease using inflammatory and inaccurate language. It is deeply unhelpful for Ministers of the Crown to be using divisive language that suggests the existence of conflicts and military objectives when all that is present is the use of the rule of law so that killed or injured members of the Armed Forces, their families and civilians, can seek justice. (Paragraph 125) Duty to consider derogating from the ECHR: Clause 12

The UK cannot lawfully make a derogation unless the Article 15 ECHR conditions for derogation are met. Clause 12 appears to do nothing except require the Minister to consider whether it would be appropriate to make a derogation where those conditions are met, and where such a derogation was necessary to ensure that the UK remained in compliance with its international obligations. It is therefore highly questionable as to whether this provision adds much to what the Minister would or indeed should do in any event, but it does arguably increase the risk of judicial review proceedings and requests for information under the Freedom of Information Act, inquiring whether the Minister has made such a determination and on what grounds.

There is a real risk that the meaning of “war” in Article 15 ECHR may not align with the meaning given to “significant operations overseas” in clause 12 of the Bill. The MoD should avoid any difference in meaning so that this clause is aligned with the meaning in Article 15 ECHR, by amending this clause to make that clear. It should be made clear on the face of the Bill that this would only apply to UK involvement as a belligerent in an international armed conflict or a non-international armed conflict and that it would not apply in respect of peacekeeping operations, counter-terrorism operations or special operations.

In respect of the majority of ECHR rights potentially engaged in a conflict situation, no derogation of Convention rights is possible. It is, however, possible, where required by the strict exigencies of the situation, to derogate from certain requirements of Article 5 in relation to detention and Article 8 (right to respect for private and family life). Any such derogations would only be possible where they are necessary due to the strict exigencies of the situation, and adequate safeguards should be in place. Importantly other international human rights and international humanitarian law would still apply to protect detainees, civilians and those hors de combat.

The Government may wish to consider restricting this provision so as only to apply to those Articles which could be relevant—namely Article 5 and 8 ECHR. (Paragraph 142) 54 Legislative Scrutiny: The Overseas Operations (Service Personnel and Veterans) Bill

Given recent, well-known, concerns about the lack of timely, adequate information to and consultation of Parliament by the Government, we have little confidence that the Government will consult Parliament in good time without a clear undertaking by the Government.

Improved transparency in information provided to Parliament and in parliamentary involvement in the derogation process (other than as fait accompli) would hopefully improve transparency, decision-making and compliance with the law.

We call on Government to make an undertaking to consult with the Committee in advance of any proposed derogation under the ECHR. They should provide Parliament with sufficient time to consider any proposed derogation in advance of the UK derogating from its international obligations. We also expect to receive from the Secretary of Defence, a detailed Memorandum explaining how the Article 15 ECHR criteria are met in the case of any proposed or actual derogation. (Paragraph 152) Wider implications of the Bill on military operations

We regret the impact that the introduction of this Bill has already had on the reputation of the Armed Forces and of the UK internationally. We would further call on the Government to consider very carefully the message that it sends to troops about accountability and compliance with international humanitarian law and international human rights law.

In particular we note the importance of the development of robust relationships in host countries as part of the human dimension of warfare particularly in conflicts where significant numbers of land forces deploy. Compliance with the rule of law is all the more important where the original purpose of deployment was to uphold the rule of law and enforce human rights in the host nation. There are risks that the appearance of double standards through the introduction of this Bill will make it all the more difficult to develop trust with local civilian populations. (Paragraph 161) Legislative Scrutiny: The Overseas Operations (Service Personnel and Veterans) Bill 55