Armed Forces Personnel and Veterans: Legal Protections

Tuesday 21st May 2019 Written Statements

[The Secretary of State for Defence (Penny Mordaunt)]

We all owe a huge debt of gratitude to our armed forces, who perform exceptional feats in incredibly difficult circumstances to protect this country. We set the highest standards of personal behaviour and conduct for our personnel, and rightly hold them to account when they fall short of these expectations. Service personnel must comply with service law (which includes the requirement to comply with the criminal law of England and Wales) whenever they are on operations, regardless of where those operations take place.

This Government are strongly opposed to our service personnel and veterans being subject to repeated investigations in connection with historical operations many years after the events in question, and want not to repeat the type of situation that has evolved under the Iraq Historical Allegations Team (IHAT). Our veterans, many now elderly and frail, face the considerable trauma of being subject to drawn-out investigations—even when ultimately there is no case to answer—and the threat of potential prosecution. This does not serve justice, and the prospect of vexatious allegations has the potential to limit operational effectiveness.

To address the basic unfairness of repeated investigations many years after the event, I intend to undertake a short public consultation on measures which I believe should be taken forward in legislation. One of the measures this consultation will include is a statutory presumption against prosecution of current or former personnel for alleged offences committed outside the UK in the course of duty more than 10 years previously, and which have been the subject of a previous investigation. This is not the same as a statute of limitations or amnesty, but it will mean that prosecutions in such circumstances should not be considered to be in the public interest, except in “exceptional circumstances”.

Our obligations to veterans who have served in Northern Ireland remain the same as those who served in other theatres. I have agreed with the Northern Ireland Secretary that my Department will provide formal input to any process taken forward by the Northern Ireland Office resulting from the Stormont House agreement. I understand the importance of making sure this process is fair and has the trust of all sides, supporting the commitments of the UK and Irish Governments to the Belfast agreement and to peace in Northern Ireland. In this spirit, we intend to share our considerable experience of the practical difficulties of investigating historical allegations from Iraq and Afghanistan and the unintended consequences that resulted from it, and the impact this has had on armed forces personnel. Veterans’ voices need to continue to be heard and the lessons of IHAT need to be learned.

IHAT was established with the best of intentions but was hijacked by unscrupulous lawyers who argued for an expansion of our investigative obligations. It spiralled from a two-year investigation into around 100 allegations to more than 3,500 allegations. Public Interest Lawyers—which closed in 2016 and whose principal, Phil Shiner, was subsequently struck off—repeatedly argued in court both for an increase in the number of cases that should be investigated and that investigations were taking too long. Between 2014 and 2016, this firm alone notified the MOD of allegations—of unlawful killing or ill-treatment—by around 1,200 people. Of the many thousands of allegations put to IHAT, only a small proportion merited full investigation and only a handful might lead to a prosecution. There are many cases where the investigation found evidence that UK service personnel had acted in self-defence, in the defence of others, and lawfully. In some cases, allegations appear to have been completely fabricated.

In an operational context, I also want to remind the House of the announcement made by the Government in October 2016 that we intend to derogate from the European convention on human rights before we embark on significant future military operations, where this is appropriate in the precise circumstances of the operation in question. Any derogation would need to be justified and could only be made from certain articles of the convention. In the event of such a derogation, our armed forces will continue to operate to the highest standards and be subject to the rule of law. I have instructed my Department to work across Government on how derogation might apply in the different possible circumstances of future conflicts.

In relation to providing improved support, I am committed to delivering better compensation for those injured, or the families of those killed on combat operations, by bringing forward legislation as soon as parliamentary time allows. This would seek to establish a no-fault scheme that will pay the same level of compensation as a court would award. This will be of considerable benefit to service personnel and their families, who will no longer have to pursue lengthy and stressful claims in the court.

I also intend looking again at possible options which would prevent civil claims being brought in respect of historical events overseas.

I will keep this House informed as we move forward with these proposals.

[HCWS1575]