The Overseas Operations (Service Personnel and Veterans) Bill was last week voted through its third reading in the House of Commons. Although the Bill was cleared by 345 votes to 260 with a majority of 85, it continues to generate controversy.
The main purpose of the Bill is to provide greater legal protection to armed forces personnel and veterans serving on military operations overseas.
The proposed legislation would create a “triple lock” for troops and veterans, including a presumption against prosecution for alleged offences committed more than five years ago.
It also introduces a 6-year time limit on bringing civil claims in connection with overseas operations and places a duty on the Government to consider derogating from the European Convention on Human Rights in relation to significant overseas operations.
The Government has made it clear that the Bill does not place service personnel above the law and that they will continue to be “held to the highest standards of personal behaviour and conduct” and that “credible allegations of serious criminality” will continue to be investigated.
There is a lot of support across all parties for a Bill supporting our armed forces and eliminating vexatious claims, driven by one of the most shameful episodes in modern legal history when thousands of British soldiers who served in Iraq from 2003 to 2009 were falsely accused of brutality and abuses against civilians.
Over 4,000 claims were made against our armed forces by the Iraq Historic Allegations Team – yet the vast majority of evidence against our troops was fraudulent. As a result, a terrible price has been paid by the accused: shattered families, broken marriages, ruined finances, stalled careers, poor mental and physical health. In the case of Major Robert Campbell, it took eight investigations over a period of 17 years before he was eventually cleared over the death of an Iraqi teenager.
While the Bill seeks to end repeated investigations against military personnel, it has also come in for heavy criticism.
The Joint Committee on Human Rights says veterans could escape justice for offences such as torture. The committee report says there are “significant concerns that the presumption against prosecution breaches the UK’s legal obligations under international humanitarian law, international human rights law and international criminal law”.
Other groups and figures to criticise the Bill include Amnesty International UK. It says the plan would case “real and lasting damage to the reputation of the Armed Forces”, while Conservative MP and former cabinet minister David Davis has said he is “deeply troubled by government plans to decriminalise torture by British personnel” (his amendment to ensure the Bill’s provisions do not apply to torture was this week defeated by 269 votes to 334).
As a solicitor who represents service personnel, veterans and their families, I have a range of additional concerns about the Bill.
First and foremost, it fails to address the UK’s systemic failings which produced numerous and prolonged criminal investigations against individual members of the armed forces on operations overseas.
In the interests of justice, it is vital to ensure a speedy trial and resolution of any criminal allegations against individual members of the armed forces as a result of operations overseas.
To ensure adequate legal representation, I also believe an independent advocate from the Bar Council or Law Society should be appointed to advise and represent military personnel and veterans who face prosecution as a result of operations overseas.
Service personnel and veterans find it particularly difficult to locate and instruct lawyers outside the military environment. They do not know who to turn to for support and assistance and quite often fear they are breaching the Official Secrets Act by talking to a civilian lawyer. There is frequently a conflict between the MoD and the individual soldier or veteran which then requires separate representation. Details should be widely publicised with emergency contact details. This service should be paid for by the State and free to serving military and veterans.
Section 2 of the Bill, which introduces a six-year time limit on civil claims, is also misconceived and overlooks the “no disadvantage” direction in the Armed Forces Covenant.
There is no requirement to place a time limit on civil compensation claims brought by foreign nationals against the MoD as a corporation if a robust system of investigation is in place.
If this section is not required, neither is the ‘equality’ argument of subjecting our own members of the armed forces to reduced time limits if injured or killed overseas.
During the past 16 years there have been 25,000 civil cases against the MoD brought by injured British troops or their families. The MoD accepts and settles four in five cases, yet the Bill brings in a block after six years on any such claims arising from overseas deployment.
The proposed six-year longstop on civil claims in this legislation will significantly disadvantage those who have served abroad – particularly service personnel and veterans who suffer from latent diseases. It cannot be right to deny those who put their lives on the line for our country overseas the same employer liability rights as the UK civilians they defend.