Legislate now to protect troops from endless vexatious investigations, says Defence Committee
Defence Committee Press Notice – 22 July 2019
A resolute and determined Government can legislate to protect veterans and Service Personnel from vexatious claims and cycles of re-investigation. So says the Defence Committee in its report, published today, entitled Drawing a Line: Protecting Veterans by a Statute of Limitations.
The Committee members state:
“We have long been greatly concerned by the increasing encroachment of litigation into the sphere of military engagements, and by the cycles of investigation and re-investigation of current and former Service personnel for alleged incidents from many years ago.”
Their report, which examines the legal framework underpinning current military engagements at home and abroad, as well as legacy investigations into Operation Banner (Northern Ireland), Operation Herrick (Afghanistan) and Operation Telic (Iraq), emphasizes that wrongdoing and criminality should be investigated and punished appropriately; but it warns that cycles of endless re-investigation risks undermining morale in the Armed Forces, the potential for future recruitment, and trust in the rule of law itself.
The Committee welcomes recent Government suggestions that it will adopt a ‘presumption against prosecution’ for alleged offences in operations overseas more than ten years ago, in the absence of compelling new evidence, and that – in future conflicts – it will derogate from parts of the European Convention on Human Rights (ECHR). It urges the Government to bring forward these proposals in the form of a draft Bill for pre-legislative scrutiny by the Committee, but is critical of the exclusion – so far – of Operation Banner in Northern Ireland from being covered by the new approach.
The Committee’s report warns that the European Court of Human Rights has gone far beyond the original understanding of the European Convention on Human Rights (ECHR), and that its rulings have stretched the temporal and territorial scope of the UK’s Human Rights Act (HRA) beyond Parliament’s original intentions. The report examines proposals by Professor Richard Ekins to amend the Human Rights Act to restore the former scope of the HRA and application of the ECHR. The Committee calls on the Government to examine if such amendment is necessary to protect its plans for a presumption against prosecution after ten years have elapsed and in the absence of compelling new evidence.
Defence Committee Chairman, Dr Julian Lewis MP says:
“We believe in what we term a ’Qualified Statute of Limitations’—one that draws a line after a decade has elapsed unless compelling new evidence can be produced. To meet the requirements of international law that adequate investigation must have taken place, this process could include a Truth Recovery Process where evidence can be taken, without threat of prosecution, finally to uncover the facts.”
Committee Member and former soldier, Johnny Mercer MP, says:
"The time for successive Secretaries of State to put this issue in the ‘too difficult’ box has officially passed with the conclusions of this report. There are options available to end what I consider one of the greatest injustices we self-inflict upon those who serve. I and others fully expect the next Prime Minister to end this ridiculous charade and legislate to prevent abuses of the legal system by those who seek to rewrite history."
[To read the full report, click here.]
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We and our predecessor Defence Committees have long been greatly concerned by the increasing encroachment of litigation into the sphere of military engagements, and by the cycles of investigation and re-investigation of current and former Service personnel for alleged incidents from many years ago.
In the last Parliament, our predecessor Committee and Sub-committee undertook detailed inquiries into the investigations into historic Troubles-related allegations in Northern Ireland and into the Iraq Historical Allegations Team (IHAT). In both cases, processes were identified which were deeply unsatisfactory and entirely unfit for purpose. The Committee warned that,
“in adhering to the pursuit of justice and the rule of law, the Government must not lose sight of its moral responsibility and its commitment to the Armed Forces Covenant with those who have served”.
Fortunately, IHAT was closed down in 2017 – largely as a result of the Sub-committee’s inquiry.
In the case of Northern Ireland, our predecessor Committee recommended that the Government should bring forward legislative proposals to enact a Statute of Limitations,
“covering all Troubles-related incidents, up to the signing of the 1998 Belfast Agreement, which involved former members of the Armed Forces”,
coupled with a truth-recovery mechanism aimed at providing families of the bereaved with the best possible prospect of discovering the truth.
The Government’s response to this report promised to include the above recommendation in the Northern Ireland Office’s legacy consultation, but that promise was broken. This prompted us to look more broadly at the question of how former Service personnel can be protected from the spectre of investigation and re-investigation for events that happened many years, and often decades, earlier. This report is focused on delivering protection for veterans and Service personnel who were previously engaged in operations, not only in Northern Ireland, but around the world.
Throughout our inquiry we have been determined to ensure that justice prevails for veterans and for current Service personnel, whilst ensuring that wrongdoing and criminality are appropriately investigated and punished. At no point has this Committee (or its predecessor Committee in the last Parliament) endorsed amnesties or blanket immunity from prosecution. Those who serve in our Armed Forces are not above the law, but we believe that there is something fundamentally wrong when veterans and current Service personnel can be investigated and exonerated, only then to become trapped in a cycle of endless re-investigation. We warn that this state of affairs risks undermining not only morale within the Armed Forces, and the potential for future recruitment, but also trust in the rule of law.
This report examines the legal frameworks that underpin the work of the Armed Forces at home and abroad, before examining current legacy investigations into Operations Banner, Telic and Herrick, as well as examples from previous campaigns. We conclude that the legal frameworks underpinning the role of the Armed Forces in civil and military operations are becoming increasingly complex and difficult to navigate, particularly in the fog and confusion of conflict.
We also looked at the levels of legal and welfare support provided to veterans and current Service personnel who have been subjected to legacy investigations. We conclude that there appears to be a good level of legal support available to those under investigation. However, we have concerns about the level of welfare support and particularly about the ability of veterans to gain access to it. We recommend that the Government should adopt a more proactive approach – fully utilising the Veterans Gateway and making contact with veterans who may be out of range of their regimental associations and ill-equipped to use online resources.
Finally, we endorse three options for reforming the current system of legacy investigations:
Presumption against prosecution: we welcome the Government’s preliminary announcement that it intends to derogate from parts of the European Convention on Human Rights (ECHR), prior to future conflicts, and also to adopt a presumption against prosecution for offences that are alleged to have taken place in operations overseas more than ten years ago, except where compelling new evidence emerges. However, we are concerned that this proposal will not cover soldiers who served in Northern Ireland during the Troubles and we intend to do all we can to ensure that all veterans are afforded equal protection from vexatious claims or cycles of endless re-investigation. We also recommend that, as part of its planned consultation process, the Government should bring forward its proposals in the form of a draft Bill and that this should be made available to us for pre-legislative scrutiny.
Reform the Human Rights Act: this covers proposals put forward by Professor Richard Ekins to amend the Human Rights Act, alongside derogating from the ECHR ahead of conflicts. We share Professor Ekins’ assessment that the European Court of Human Rights (ECtHR) has gone far beyond the original understanding of the European Convention on Human Rights, and that its rulings have stretched the temporal and territorial scope of the Human Rights Act beyond Parliament’s original intentions in 1999. We conclude that the Government needs to consider whether the Human Rights Act should be amended in order to protect its plans for a presumption against prosecution. We recommend that, as part of the MoD’s consultation on its proposals, Professor Ekins’ proposals should be included.
Statute of Limitations: we continue to believe in we term a ’Qualified Statute of Limitations’ – one that covers those veterans and current Service personnel who have been investigated and exonerated for alleged offences, from re-investigation, while allowing for the possibility of compelling new evidence emerging. We are therefore pleased that the proposals, formulated by the Defence Secretary, her predecessor and the Attorney General, for a presumption against prosecution appear to amount to a ten-year Statute of Limitations, qualified by an exception where compelling new evidence has been discovered.
We look forward to scrutinising the Government’s plans in detail when they emerge, but we remind the Government that if the ECtHR seeks to overrule them, then the option will remain of changing the UK’s stance in relation to the ECHR on the lines recommended by Professor Richard Ekins. As we conclude in the report, this problem can be solved – but only by a resolute Government with the determination to do so.