I hope that you are all well after what has been an extremely challenging few months for everyone.
I wrote to you in March setting out the MOD’s plans to introduce the Overseas Operations (Service Personnel and Veterans) Bill into the House of Commons.
The Bill was introduced to help tackle vexatious claims and the cycle of reinvestigations against our Armed Forces, to whom we owe a vast debt of gratitude. We introduced these measures to help to reduce the uncertainty faced by our Service Personnel and Veterans, as well as providing a better legal framework for any future overseas conflicts, recognising the unique burden and pressures placed on our personnel.
In addition to this, the Government will introduce separate legislation covering Northern Ireland which will contain measures to address the Troubles which focuses on reconciliation, delivers for victims, and ensures that Northern Ireland veterans are treated equally to those who served overseas. We remain committed to moving forward on this as quickly as possible.
Since I last wrote, we’ve all been operating in unprecedented and challenging conditions. Emergency COVID-19 legislation has, rightly, taken precedence in Westminster, and has delayed our Bill up until now. However, my officials and I have been working tirelessly to prepare for the next stages of the Bill’s progression through Parliament, and as I am sure you are aware, second reading is this Wednesday, 23 September.
In case you missed my previous letter, here is a top-level summary of the measures contained in the Bill:
Statutory presumption against prosecution
The Bill will create a new ‘triple lock’ in order to give Service Personnel and Veterans greater certainty that the unique pressures placed on them during overseas operations will be taken into account by prosecutors when making a decision whether to prosecute for alleged historical offences. The triple lock consists of:
- a presumption that once five years have elapsed from the date of an incident, it is to be exceptional for a prosecutor to determine that a Service Person or Veteran should be prosecuted for alleged offences on operations outside the UK;
- a requirement that prosecutors must give particular weight to certain matters when considering whether to rebut the presumption, including the adverse effect on individuals of overseas operations, and where there has been a previous investigation and there is no compelling new evidence, the public interest in cases coming to a timely conclusion; and,
- where a prosecutor determines that a case should go forward to prosecution, notwithstanding the presumption and the matters to be given particular weight, the consent of the Attorney General must be obtained before a prosecution can proceed.
Duty on Government to consider derogation
This measure will ensure that all future governments are compelled to consider derogating from the European Convention on Human Rights (ECHR) in relation to significant overseas operations. This would allow us to maintain operational effectiveness and may also reduce the potential number of future Human Rights Act (HRA) claims.
Limitation longstops and restricting courts discretion to extend time limits for civil claims
The Bill will introduce an absolute limitation period of six years for personal injury and death claims and additional factors for the court to consider when deciding whether to extend the primary limitation period of three years. These measures may reduce the potential number of civil claims in future and provide a clear time period during which such claims can be brought in relation to historical operations outside the UK. The longstop of six years will run from the date of knowledge or the date of incident. This will ensure that individuals will not be disadvantaged where a claim relates to an issue like PTSD, which may not be diagnosed for many years after an event.
Limitation longstops and restricting courts discretion to extend time limits for HRA claims
The Bill will also introduce an absolute limitation period of six years for HRA claims and factors for the court to consider when deciding whether to extend the primary limitation period of 12 months. This may reduce the potential number of claims and provide a clear time period during which they can be brought for alleged HRA violations in relation to historical operations outside the UK. The longstop for HRA claims will be calculated as six years from the date of the act or twelve months from the date of knowledge if this arises more than six years after the date of the act. This is similar to the approach taken for personal injury and death claims.
Inclusion of service personnel and veterans in Part 2 of the Bill
I would like to clarify, following an Urgent Question which I answered in Parliament on 16 July, how Part 2 applies to claims made by Service Personnel and Veterans.
To be absolutely clear, we do not anticipate these measures having any significant negative impact on the ability of Service Personnel and Veterans and their families to bring claims. The Ministry of Defence remains firmly committed to the Armed Forces Covenant, and we are confident that this Bill does not break the Covenant’s commitment not to disadvantage Service Personnel and Veterans.
The longstops apply to all claims made in connection with overseas operations equally, whether brought by Service Personnel, or anyone else. Additionally, the Bill only affects claims made in relation to overseas operations due to their unique circumstances. Other claims, whether by Service Personnel or anyone else, will remain unaffected by the longstops.
It is worth noting that our analysis suggests that over 94% of claims made by Service Personnel and veterans in relation to Iraq and Afghanistan were made within six years of the date of the incident or of the date of knowledge. In future, I fully anticipate that any claims that would have been outside those timelines may well be brought earlier. To help ensure this happens, we will widely publicise the new longstops through briefing notes and routine orders across all three Services to ensure that everyone in the Armed Forces Community is fully aware of their rights. What’s more, Service personnel and veterans will continue to benefit from the Armed Forces Compensation Scheme, which has a 7-year time limit for bringing claims.
I am aware that there has been coverage in the media over the past few weeks about the Bill, and I wanted to correct some of their misrepresentations. None of these proposals will erode the rule of law or prevent the MOD from being held to account, and we fully intend maintaining our leading role in the promotion and protection of human rights. We unreservedly condemn the use of torture and remain committed to our obligations under international humanitarian and human rights law, including the UN Convention Against Torture. Nothing in the Bill changes this position. We are not seeking to excuse alleged offences by Service Personnel, and credible allegations of wrongdoing will continue to be investigated and, where appropriate, prosecuted.
We believe that, combined, these measures will provide greater certainty for Service Personnel and Veterans, and help reduce the threat of reinvestigations and possible prosecution, and the number of claims made against MOD.
I am extremely grateful for the support already received from the Armed Forces Community over the last few months. We would appreciate your continued support to ensure that the strong stance that the Government is taking to seek to end vexatious claims and reinvestigations is properly highlighted to the media and the general public as we prepare for the crucial 2nd Reading of the Bill in the House of Commons.
Johnny Mercer MP – Minister for Defence, People and Veterans.