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Operations (Service Personnel and Veterans) Bill is unjustifiable, ineffective and will prevent justice from being done, say Joint Committee on Human Rights

29 October 2020

Today the Joint Committee on Human Rights has published its Report, "Legislative Scrutiny: Overseas Operations (Service Personnel and Veterans) Bill", which concludes that the Bill does nothing to address the issue of inadequate, repeated investigations and instead risks breaching human rights obligations by introducing further barriers to providing justice for victims and preventing prosecutions for serious offences such as torture, war crimes, crimes against humanity and genocide.

In July 2020-the Joint Committee on Human Rights launched an inquiry into The Overseas Operations (Service Persons and Veterans) Bill (OO Bill). During the course of this inquiry, the Committee heard from expert witnesses as well as Parliamentary Under Secretary of State for Defence, People and Veterans in the Ministry of Defence (MoD) and Minister for Veterans’ Affairs in the Cabinet Office, Johnny Mercer, and Baroness Goldie, Minister of State, Government Spokesperson in the House of Lords on defence matters, as well as MoD officials.

The Chair of the Committee, Harriet Harman MP QC said:

"Members of our Armed Forces are not above the law, nor should they be exempt from upholding human rights. There are some very troubling issues with this Bill.

This Bill creates unjustified barriers to the Service Prosecuting Authority's ability to prosecute members of the Armed Forces who commit crimes. This breaches the UK's human rights obligations and disregards the fact that there are many complexities and difficulties involved in bringing such claims to light. It is wrong that the Government should seek to use a presumption against prosecution to prevent prosecutions even for the most serious human rights violations, such as crimes against humanity, war crimes, murder, torture or genocide.

This Government seeks to use the problem of repeat investigations as a justification for the Bill, but ignores the fact we heard in evidence, which was that repeat investigations are largely a result of poor investigations that lack sufficient independence. Investigations into incidents arising from the UK's involvement in conflicts have exposed extremely serious wrong-doing, and it is therefore vital that future action to investigate and prosecute such crimes can continue unimpeded.

We object to the Ministers denigration of both of lawyers and claims. The repeated use of the term "lawfare" and "vexatious" claims in Parliament and public rhetoric shows a failure to respect the role of the independent legal profession in upholding the rule of law, the role of the courts in striking out vexatious claims and the independence of the Service prosecution Authority. We asked the MoD Minister to inform us of any cases where he believed the courts have failed or refused to use their powers to strike out unmeritorious claims. He was not able to do so.

Without amendment, the Bill as it stands will allow those in our armed forces who perpetrate serious crimes to escape justice and prevent victims with justified claims bringing wrongdoing before the courts. It is bad for the rule of law, bad for the victims of crime and bad for our Armed Forces."

The Bill contains three main elements:

a) A statutory presumption against prosecution after 5 years;

b) Shorter and more inflexible limitation periods for claims for human rights violations, personal injury and death; and

c) A duty to consider derogating from the European Convention on Human Rights (ECHR) in respect of future overseas military operations.

The Committee has today published a Report on this bill, which expresses dissatisfaction with both the Bill itself and the Government's use of inflammatory language to describe lawyers representing those who have been harmed by unlawful mistreatment at the hands of the UK Armed Forces. The Committee has concluded the following:

  1. There is no justification for introducing a "triple-lock" statutory presumption against prosecution in cases where the MoD’s Service Prosecutor has decided there is sufficient evidence and that the prosecution is in the public interest.
  2. MoD Ministers should stop using politicised and inaccurate language in relation to claims where the MoD did have a case to answer and in relation to the lawyers who take such cases.
  3. The Bill breaches the UK’s international legal obligations under international humanitarian law, human rights law and international criminal law.
  4. The MoD should establish an independent, skilled and properly funded service for investigations.
  5. The Bill fails to incentivise the removal from operational duties of Armed Forces Personnel known to lack adequate self-control or the ability to make sound judgements so they can be given the support they need.
  6. The Government must understand and reflect on how this Bill may damage our international standing and the reputation of our armed forces.

Further information

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