WE ARE A MAGAZINE ABOUT LAW AND JUSTICE | AND THE DIFFERENCE BETWEEN THE TWO
December 01 2020
WE ARE A MAGAZINE ABOUT LAW AND JUSTICE | AND THE DIFFERENCE BETWEEN THE TWO

‘A uniquely reprehensible bill’

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‘A uniquely reprehensible bill’

Image from Proof issue 3: Why legal aid matters

In 2005, Lord Bingham, giving the judgment of the House of Lords, wrote that ‘torture is… totally repugnant to the fundamental principles of English law’.  This absolute rejection of torture, as an anathema to our national values, is no longer so absolute, judging by the language of the Overseas Operations Bill, which passed its second reading in the House of Commons last week.

This bill reveals a government that is not concerned with upholding the dignity of the British military, ensuring that soldiers who act dishonourably are held to account. Instead, preserving the ‘morale’ of the soldiers is apparently its priority, more concerned with ensuring that the military’s recruitment efforts are buoyant than with respecting international law.

The primary ambition of the bill is ostensibly to protect soldiers from having their conduct in the field unnecessarily scrutinised.  This, in and of itself, is no bad thing. Soldiers operate in unfathomably challenging conditions, facing circumstances that civilians cannot begin to imagine.  Amid the chaos of the battlefield, the fear of prosecution, fear that would do little but distract from any military operation, should be far from soldiers’ minds.  Nor should soldiers worry about every action they took after the event, forced to relive and reconsider all their decisions, trying to decide if they will face a judge and jury for shots fired amid the heat of war.

In the aftermath of the Iraq War, this was not entirely the case.  Admittedly, there is little dispute that British soldiers deployed to Iraq violated the Geneva Convention and vast swathes of international law. In 2009, video footage was leaked to the British press, showing soldiers grabbing Iraqi boys from off the street, and viciously beating them.  This was not a lone event, but one of many to come to light, with British soldiers treating Iraqi prisoners abhorrently, most notoriously at Basra, a British military base.  All these prisoners should have been treated with dignity, as prisoners of war. Not used as punchbags for our soldiers.

But for some lawyers, these genuine claims were not enough. Most notoriously, Phil Shiner, of Public Interest Lawyers, brought manufactured claims, as well as genuine ones, against the British Army, some of which were heard in the Al-Sweady Inquiry, which examined the conduct of British troops at the Battle of Danny Boy, ultimately exonerating them. Condemning the lawyers who had instigated the inquiry, the inquiry’s report concluded that the allegations were a ‘product of deliberate lies, reckless speculation and ingrained hostility’.

It is the conduct of Phil Shiner and his ilk that has driven much of the public demand for our soldiers to be protected from unnecessary prosecution. The revelation of the false claims transformed the public’s mood, who redirected their disgust and outrage away from the military, and towards the lawyers.  This, in part, is what the bill is trying to take advantage of, showing the public that the government is on the side of ‘our boys’ by protecting them from vexatious claims.

The bill seeks to do this through a ‘triple lock’ mechanism.  First, for any allegations over five years old, there is a presumption against prosecution. In particular, this presumption requires prosecutions to consider if the circumstances the accused faced in the field mean it is not in the public interest to proceed. Second, if there has already been an investigation, and ‘no compelling new evidence has emerged’, the default position should be against prosecution. Third, and possibly the most alarming of this unpleasant trio, is the requirement for the Attorney General to approve of any prosecution where first two hurdles are surmounted.

Given that the legislation exempts sexual offences from these ‘triple locks’, it would seem that the government has not forgotten that some crimes are so heinous that they should always be prosecuted. Yet war crimes and crimes against humanity, equally reprehensible offences, are not exempted.  This puts the UK, once more, in potential breach of treaties that it has signed, including the Geneva Conventions and the UN Convention on Torture.  Brian Houlder QC, former director of service prosecutions, said that it was a ‘national embarrassment’ that we should ‘treat torture and other grave crimes, including homicide, as excusable’.

Nor is it legitimate to try and use the traumatic realities of the battlefield as an excuse. No one disputes the challenges that soldiers face, but as Dan Jarvis has written for The House, British soldiers are some of the most highly trained in the world.  If the trauma of the battlefield has devastated a soldier, causing them to act in ways they never ordinarily would have done, that should be a matter for mitigation, not a hurdle against prosecution.

It is equally illegitimate to leave the final say with the Attorney General, an increasingly politicised figure.  Ordinarily, prosecutions are decided upon at arms length from government, with the Director of Public Prosecutions an independent office of the executive.  Even though the Attorney General is supposed to hold their obligation to the law above party politics, the conduct of the current holder of the office, Suella Braverman, has shown that it is all too easy for lawyers-turned-politicians to choose political expediency over their oaths of office.  Any refusal by an Attorney General would be tainted with illegitimacy- and would raise the intriguing possibility of judicial review.

Yet these are not the only flaws within the bill. While the government has focused on the elements of the bill that protect the soldiers from the fear of unwarranted prosecution (a fear that is overblown, if the actual number of military prosecutions over, for instance, Iraq, are counted), the more alarming and consequential is how it protects the government.  In recent years, courts have become less willing to allow governments to use the justification of war as an excuse for failing to protect the rights of soldiers and victims.  In 2013, the Supreme Court ruled in Smith v Ministry of Defence that the government had to consider the soldiers’ right to life under Article 2 of the ECHR, and that simply being abroad did not mean they sacrificed the protection of UK law entirely, while in Al-Skeini, the European Court of Human Rights held that detainees under the control of the UK abroad are also protected by the ECHR.

For critics of judicial review,  this ‘lawfare’ hinders the ability of the government to properly wage war, distracting the government with unnecessary concerns, like the rights of soldiers.  Despite the courts acknowledging that the realities of war mean that governments cannot be expected to uphold rights as fully in combat situations, the fact that the military is open to the scrutiny of civil courts at all is too much for these critics.  The Overseas Operation Bill seeks to address such criticism by imposing stringent and absolute time limits on when claims can be brought.  Rather than the current position, which sets a limit of three years for civil claims and one year for human rights claims, but then gives the court the discretion to allow a late claim to proceed, the bill would remove this discretion from the court. Instead, any claim filed outside of the time limit will be barred absolutely.

This means that while purporting to defend our soldiers, in reality the bill undermines them, limiting the ability of our soldiers to hold the government to account for failing to protect their rights on the battlefield, as well as the rights of those detained.  Nor can it reasonably be said that the harm done to soldiers’ interests is an unfortunate, but necessary, consequence of trying to limit late, vexatious claims from alleged victims.  Of the cases filed against the MoD, a vastly disproportionate number come from soldiers, with John Healey MP telling the Commons’ chamber last week that troops and veterans make twenty-five claims for every one claim made by an alleged victim.

Such an amendment reflects this government’s ongoing disdain for the courts and its objection to independent scrutiny.  It does not acknowledge that the courts are slow to intervene in military decisions, and only allow claims to proceed after expired time limits when there are valid reasons for them to do so (and indeed, actions against the MoD .  Fettering their discretion actively harms the interests of our soldiers, limiting the ability of the courts, for instance, to allow claims for PTSD to proceed when the symptoms begin after the time limit has passed.  This is why the British Royal Legion, which cares for our veterans, have noted their concern for what the legislation might mean for our troops and veterans, and their families.

Given that, for Brexiters, our departure from the EU heralds the return of Britain as an independent nation onto the world stage, it is curious that that the government is choosing to return with not one but two pieces of legislation that breach international law.  Unless we are planning on using our newfound freedom to join the more reviled members of the international community, such laws achieve little. Our senior military officers understand the repercussions of this bill, with Lord Guthrie, former chief of defence staff, saying it ‘would let torturers off the hook’.  Couple this with the fact that it also tells our troops that the government is more interested in protecting itself than their rights, and it is a uniquely reprehensible bill.

After Labour abstained from the bill’s second reading, the Conservatives tweeted that Labour ‘refused to back Britain’s armed forces’.  This nationalistic propaganda belies the reality of the legislation, trusting that the British people will focus on the government’s spin, rather than its expansion of unaccountable executive power.