Committee calls for evidence on the Overseas Operations (Service Personnel and Veterans) Bill
27 July 2020
The Joint Committee Human Rights launches inquiry on the Overseas Operations (Service Personnel and Veterans) Bill.
- Inquiry: Legislative Scrutiny: The Overseas Operations (Service Personnel and Veterans) Bill
- Joint Committee on Human Rights
Overview of the Bill
The Overseas Operations (Service Personnel and Veterans) Bill was introduced into the House of Commons on 18 March 2020. A date for Second Reading has yet to be announced.
The Explanatory Notes to the Bill state that its purpose to “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.”
- introduces a number of hurdles before a prosecution can be brought against service personnel or veterans for an offence committed during an overseas operation:
- a statutory presumption against prosecution after 5 years from the date of the alleged conduct, after which it will be exceptional for a prosecutor to proceed with a prosecution;
- a requirement to get the consent of the Attorney General before bringing a prosecution
- factors which must be taken into account and to which particular weight should be given when considering whether to proceed with the prosecution, including:
adverse effects of the conditions during the operation affecting the ability of service persons/veterans to make sound judgements/exercise self-control, and the impact on their mental health; and
in cases where there has been a previous investigation and no new evidence, there is a public interest in finality;
• amends the limitation period for bringing claims in tort (for personal injury/death) to introduce a hard deadline of 6 years and to remove judicial discretion for allowing such claims beyond that period; and
• amends the limitation period for bringing claims under the Human Rights Act 1998:
- to require the judge to have regard to the mental health of any armed forces witness as well as the cogency of the evidence in any decision to allow a claim;
- to introduce a hard deadline of 6 years and to remove judicial discretion for allowing such claims beyond that date even where this is equitable in all the circumstances; and
• introduces a duty on Government to consider derogating from the Convention for specific overseas operations.
The Joint Committee on Human Rights invites submissions of no more than 1,500 words from interested groups and individuals. The Committee is particularly interested in submissions on the following questions:
The statutory presumption against prosecution:
- Is the introduction of a presumption against prosecution of service personnel and veterans justified?
- If there is to be a presumption against prosecution after a certain time, is five years from the time period of the date of the alleged conduct a reasonable period of time?
- If there is to be a presumption against prosecution, should the presumption apply to all offences, including serious offences such as murder and torture? Should it apply where the alleged conduct may amount to a war crime or crime against humanity?
- How would the right to an effective remedy for victims be impacted by the proposed change in law?
- Does the presumption against prosecution raise any issues in respect of the UK's procedural obligations under Articles 2 (right to life) and 3 (prohibition on torture, inhuman and degrading treatment or punishment) ECHR?
- What would be the implications of this change in law be on the UK's compliance with its international obligations? Does the presumption against prosecution raise any issues in respect of the UK's obligations under the Rome Statute to prosecute international crimes?
The limitation period for bringing civil claims:
- Is the proposed limitation period of six years (without exception) in cases of personal injury and death a reasonable period of time? Should the courts be allowed to retain some discretion as to what is equitable in the circumstances of each case?
The limitation period for bringing human rights claims:
- Is the new hard time limit of six years for bringing human rights claims in relation to overseas military operations reasonable, even where it would otherwise have been equitable in all the circumstances to allow such a claim to be brought?
- What will the impact be of requiring a judge to consider the mental health of witnesses before allowing a case to proceed? Should this vary depending on whether the witness is an alleged victim, perpetrator or third-party? Should this vary depending on the employment status (e.g. armed forces personnel) of the witness?
The duty to consider derogating from the ECHR:
- Does the introduction of a duty to consider derogating from the Convention in relation to overseas operations have any meaningful legal effect?
- What role, if any, should Parliament have in the scrutiny of derogation decisions? How might such a process work in practice?
The deadline for submissions is 11 September. You can submit evidence via the Legislative Scrutiny: The Overseas Operations (Service Personnel and Veterans) Bill inquiry page.
Image: Crown copyright