Parliamentary briefing: Overseas Operations (Service Personnel and Veterans) Bill – House of Commons second reading

This briefing outlines our views in relation to the Overseas Operations (Service Personnel and Veterans) Bill ahead of its second reading in the House of Commons.

Our position

The Bill, which had its first reading on 18 March 2020, has a stated aim of addressing vexatious claims and the prosecution of historical events that occurred in armed conflict overseas.

In its current state, we have concerns that the Bill has implications for the application of the European Convention on Human Rights and introduces a statutory presumption against prosecution for certain cases, and time limits for others.

Key recommendations

While the government’s stated objective of reducing spurious claims against service personnel and veterans is a valid aim, we believe that this Bill goes far beyond this purpose and would bar legitimate claims regarding serious criminal offences.

The introduction of a presumption against prosecution in the Bill creates a special category of criminal case, hitherto unrecognised in UK law. It amounts to a quasi-statute of limitations and would likely lead to some meritorious prosecutions not being brought, hence denying victims – including service personnel and veterans – access to justice.

There is a risk of violation of the UK’s international law obligations, including Article 7 of the UN Convention Against Torture and Articles 2 and 3 of the European Convention on Human Rights (ECHR). The UK is legally obliged to investigate and, where the evidence supports it, prosecute alleged offences such as torture and unlawful killing, and the presumption against prosecution may cause this not to be done.

We do not consider that government’s stated approach to derogation from ECHR obligations – that it intends to derogate before “significant future military operations” – would meet necessary legal requirements. Derogating in advance of an armed conflict that is taking place overseas would be unlikely to satisfy the criterion that there be a war or public emergency “threatening the life of the nation”. Derogation should be considered on a case by case basis, in light of the specific circumstances, not as a broad policy approach. In any case, the prohibition of torture and inhuman and degrading treatment cannot be derogated from. To derogate ahead of armed conflicts would undermine our own international standing and ability to hold other states to account for abuses in war. It may also place our own armed forces personnel at increased risk of being subjected to abusive treatment if captured.

We have not seen evidence suggesting that the courts are unable or unwilling to use their discretion to sift out unmeritorious claims. Courts can and do reject claims with limited prospects of success, and those where the passage of time has affected the evidence or where the public interest outweighs the claim. Therefore, a limitation period for civil and human rights claims is unnecessary.

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