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Overseas Operations (Service Personnel and Veterans) Bill
The government presented the Overseas Operations (Service Personnel and Veterans) Bill to parliament in March 2020.
The bill includes a:
- statutory presumption against prosecution of current or former personnel for alleged offences committed in the course of duty more than five years ago
- requirement that any prosecution brought more than five years after the event must have the attorney general’s consent to proceed
- ‘longstop’ to prevent claimants bringing human rights or civil litigation claims for personal injury or death more than six years after the event
- duty for the secretary of state to consider derogating from the European Convention on Human Rights (ECHR) ahead of military operations abroad
The bill only applies to allegations and claims relating to military operations outside the UK.
The government has previously consulted on these and other related issues through the Ministry of Defence (MoD) consultations on:
- legal protections for armed forces personnel and veterans serving in operations outside the United Kingdom
- better combat compensation
We’re concerned about the impact of the bill’s changes on the consistency of criminal, civil and human rights law.
It creates a special category of exceptions and limitations that will treat allegations against the military of criminal and civil wrongdoing overseas differently to allegations that are brought against those who are not part of the military, or for incidents that occur in the UK.
Presumption against prosecution
We believe the proposal to introduce a presumption against prosecution amounts to a quasi-statute of limitations. Introducing a time limit risks creating impunity for serious crimes and the proposal would be an exception to the normal law for a category of criminal matters that does not exist anywhere else.
There are also questions over which crimes are excluded. While sexual offences are explicitly excluded from the provision, it does not state whether the presumption against prosecution applies to allegations of torture.
The prohibition of torture is absolute. To allow allegations of it to go unanswered would damage this vital protection, setting a dangerous example to other countries and presenting a marked step backwards for human rights standards in the UK.
Human Rights Act and civil litigation ‘longstops’
Introducing a ‘longstop’ to prevent human rights and civil litigation claims being brought after six years creates arbitrary distinctions and stops people getting access to justice. This would apply to everyone where their claim is a result of military activity overseas, including soldiers themselves.
When a claim is brought a long time after an incident, the courts must already consider a range of factors to decide whether it should be allowed to proceed. There’s no evidence to suggest they are not already doing so appropriately.
Derogation from the ECHR
We’re concerned that the government did not consult on the provision requiring the secretary of state to consider derogating from the ECHR ahead of military operations abroad.
We set out our position on derogating in this way in a submission to a Joint Commission on Human Rights inquiry (PDF 273 KB) in 2017.
Derogating as a matter of policy to avoid legal claims would set a dangerous precedent for other countries. It undermines the reputation of the British army and could put our own troops at risk.
In an attempt to stop claims it considers vexatious, the government would also shut the door on meritorious ones. British soldiers and their families would also be unable to hold the government to account if their human rights were violated.
What this means for solicitors
Solicitors who advise on criminal and civil matters in relation to claims brought by or against armed services personnel in respect of activities outside the UK will be affected by these proposals.
The proposals would create a special category of limits and exemptions for serious criminal offences and civil litigation claims that otherwise do not exist.
What we’re doing
- October 2019 – we responded to the MoD consultation on legal protections for armed forces personnel and veterans serving in operations outside the United Kingdom (PDF 312 KB)
- March 2017 – we submitted written evidence to the Joint Committee on Human Rights about the government’s proposal to derogate from the ECHR (PDF 273 KB)
- February 2017 – we responded to the MoD consultation on better combat compensation for the armed forces (PDF 725 KB)
If you’re currently representing, or have previously represented a client that would be affected by this bill, we’d like to hear from you. Email our policy adviser for human rights, constitutional and administrative law at firstname.lastname@example.org.