COMMONS

Legislate now to protect troops from investigations, says Defence Committee

22 July 2019

A resolute and determined Government can legislate to protect veterans and Service Personnel from vexatious claims and cycles of re-investigation.

Committee comments

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.”

The 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.

Chair's comments

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 comments

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."

Further information

Image: MoD

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