The Conservative Party's 2019 manifesto stated that, if elected, the Party would "introduce new legislation to tackle the vexatious claims that undermine our Armed Forces." Having won the 2019 election, the Party duly introduced the Overseas Operations (Service Personnel and Veterans) Bill - Armed Forces protected from vexatious claims in important step - GOV.UK (www.gov.uk). Various amendments to the Bill occurred during its passage through Parliament. The resulting Act received Royal Assent on 29 April 2021 -
Overseas Operations (Service Personnel and Veterans) Act 2021 (legislation.gov.uk)
Background:
Explanatory notes were
published along with the Act are but the notes are not, and are not intended to be, a comprehensive description of the Act.The notes state that the Act "aims to provide greater certainty for Service personnel and veterans in relation to claims and potential prosecution for historical events that occurred in the complex environment of overseas operations."
The notes continue by stating that "judgments in Strasbourg and the UK’s domestic courts in relation to operations in Iraq and Afghanistan confirmed the applicability of ECHR to overseas military operations, and the actions of the MOD and UK Service personnel."
As regards the applicability of ECHR see the European Court of Human Rights Grand Chamber judgment in Al Skeini v UK 2011 and, in particular, para 149. See also Military chiefs lead charge against Human Rights Act | UK news | The Guardian
The explanatory notes further state - "Operations in Iraq in 2003-2009 (Operation Telic) and Afghanistan in 2002-2017 (Operation Herrick) gave rise to an unprecedented number of legal claims for damages and non-compliance with the UK’s obligations under the ECHR. MOD faced approximately 1,400 judicial review claims and over 900 civil claims for compensation arising from the 2003-09 operations in Iraq and around 100 claims arising from operations in Afghanistan. In some cases, the courts found that the UK’s legal obligations were breached: they ruled that detention processes were flawed and that some practices which constituted inhuman or degrading treatment were prevalent."
The explanatory notes accept that there were "also instances of criminal behaviour, where individuals were prosecuted for serious criminal offences" and point out that "nothing in this Act will stop those suspected of committing criminal acts from being prosecuted, where appropriate." Nonetheless, "UK Service personnel and veterans have been subject to numerous claims – including those that were ultimately discredited, or were brought in multiple jurisdictions, or were found to have been encouraged by lawyers pursuing financial gain."
The point about "financial gain" appears to be a reference to former solicitor Phil Shiner of Public Interest Lawyers who was struck off in 2017. For more of the background see the earlier post Law and Lawyers: Iraq - the story continues (obiterj.blogspot.com) which includes links to a number of inquiries including Baha Mousa and Al Sweady.
The Iraq Historical Allegations Team was closed on 30 June 2017 with any remaining cases transferred to the Service authorities - IHAT to close at the end of June - GOV.UK (www.gov.uk).
European Convention Derogations:
Article 15 of the European Convention on Human Rights enables a State to take measures derogating from its obligations under the Convention in time of war or other public emergency threatening the life of the nation. Any measures taken must be only to the extent strictly required by the exigencies of the situation and measures must not be inconsistent with the State's other obligations under international law.
European Convention on Human Rights (coe.int)
The UK has derogated from some articles of the convention in the past - Counter-Terrorism Policy and Human Rights (Seventeenth Report): Bringing Human Rights Back In - Human Rights Joint Committee (parliament.uk)
In 2016, the government stated an intention to introduce a presumption that, in the event of future armed conflicts, the UK would derogate from the Convention - Government to protect Armed Forces from persistent legal claims in future overseas operations - GOV.UK (www.gov.uk)
The idea of such a presumption appeared in the Overseas Operations (Service Personnel and Veterans) Bill but, as a result of a Lords amendment accepted by the government, does not appear in the Act. Hence there is no statutory presumption of derogation BUT, as pointed out by the Joint Committee on Human Rights - the government is still able to derogate if it decides that such a course is appropriate - see para 29 of this report by the committee -
The 2021 Act:
Overseas Operations (Service Personnel and Veterans) Act 2021 (legislation.gov.uk) and also the Explanatory Notes - Overseas Operations (Service Personnel And Veterans) Act 2021 (legislation.gov.uk)
The Act deals with both prosecutorial decisions for what are referred to as "relevant offences" and with limitation periods for civil actions. The following is a broad overview of the Act.
Criminal cases - At the heart of the act is a statutory presumption against prosecution for what are referred to as "relevant offences".
By section 1, the Act seeks to reduce the likelihood of prosecutions in cases where the Act applies.
Section 2 explains the effect of the presumption - i.e. it will be exceptional for a prosecutor to determine that proceedings should be brought in relation to offences committed by members of the Armed Forces when deployed on operations outside of the British Islands more than 5 years earlier.
The term "relevant offences" is defined by section 6 and includes service offences under the Armed Forces Act 2006 section 42 and all criminal offences EXCEPT those that are excluded by Schedule 1.
The fact that the Act provides for a PRESUMPTION against prosecution means that prosecutions are not entirely excluded but, combined with the requirement for the consent of the Attorney General to a prosecution (section 5), the Act appears to make them unlikely.
A prosecutor who has to decide whether a prosecution could be brought must consider the factors set out in section 3 so far as they tend to reduce the person's culpability or otherwise tend against prosecution.
There are two exceptions to the protections offered by the Act to military personnel. (1) if the crime is a sexual offence, (2) if the victims are themselves British military personnel. It is not easy to see why there is more protection to those accused of sexual offences than for those accused of (say) murder. As an article published by Human Rights blog noted - " .. it is to be welcomed that soldiers won't be denied access to justice if they are victims but it is hard to see why foreign or non-military victims are to be denied their rights.
UK Human Rights blog - Overseas Operations Bill: Getting Away With Murder - Dr Ronan Cormacain - UK Human Rights Blog
Civil cases - Generally-speaking there is a 3 year limitation period on civil claims for personal injury - Limitation Act 1980 section 11. The time limit can sometimes be extended by the court - see section 33.
The 2021 Act provides that the time limit cannot be extended beyond 6 years and specifies additional factors which a court must consider when exercising a discretion to extend beyond 3 years.
See section 8 and Schedule 2.
Human Rights claims - The 2021 Act inserts a new section 7A into the Human Rights Act 1998.
Certain factors are set out to which the court must have particular regard when deciding whether to allow a claim to proceed beyond the normal time limit. Claims cannot proceed more than 6 years after the act complained of occurred or more than one year after the date of knowledge if that one-year period expires more than 6 years after the date of the act.
Viewpoint:
Law within the UK has not time-barred prosecutions for serious criminal offences but the 2021 Act is effectively s statute of limitations for serious criminal offending.
The Act also gives rise to several concerns relating to the Rule of Law and those are well-explained by the Bingham Centre for the Rule of Law -
Bingham Centre for the Rule of Law - Overseas Operations (Service Personnel and Veterans) Bill: A Rule of Law Analysis (biicl.org)
The Bingham Centre notes that - "The UK has a long and proud reputation of decisive action against war crimes. This [Bill] weakens that reputation. It makes it harder, not easier to stamp out abuses that our troops have committed. We do not protect British troops and British values by hiding from ther truth or acting with impunity."
Further reading:
Solicitors Journal - The trials and persecution of British soldiers – Overseas Operations (Service Personnel and Veterans) Act 2021
UK Human Rights blog - Overseas Operations Bill: Getting Away With Murder - Dr Ronan Cormacain - UK Human Rights Blog
Bingham Centre for the Rule of Law - Overseas Operations (Service Personnel and Veterans) Bill: A Rule of Law Analysis (biicl.org)
International Criminal Court - Statement of the Prosecutor, Fatou Bensouda, on the conclusion of the preliminary examination of the situation in Iraq/United Kingdom (icc-cpi.int)
5 November 2021
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