When the Commons returns next week, so does the controversial overseas operations bill. It faces cross-party amendments and a growing chorus of criticism that ranges from the Royal British Legion to Liberty to the Law Society. The closer people look at this legislation, the less they like it.
This is a dishonest and damaging bill that simply doesn’t do what it says on the tin: protect British troops in overseas conflicts from vexatious litigation and repeat investigations. Worse, it breaches the Armed Forces Covenant, risks British troops being dragged to trial before the international criminal court and does more to protect the Ministry of Defence than our armed forces personnel.
There has been a problem, under both Labour and Conservative governments, of baseless allegations and legal claims arising from Iraq and Afghanistan. But this bill is not a solution; rather it would create fresh problems and risks for British troops serving overseas. It would be unfit as the legal framework should this country commit its servicemen and women to conflict situations in the future.
From the outset, I’ve said Labour wants to protect British forces from long-running litigation, and have offered to work with the government on the changes needed to make this legislation fit for purpose. Sadly, ministers are in denial about the deep flaws and dangers in their bill.
More than 99% of more than 4,000 criminal claims from Iraq and Afghanistan did not reach the point of prosecution, yet many British troops subject to allegations have suffered the misery of repeated investigation. This bill would have made no difference to them because it deals only with the prosecution process, and does nothing to fix failings in military investigations. So first, the government should give military judges oversight of investigations, with powers to set time limits and block reinvestigations when the evidence isn’t sufficient.
During the past 16 years there have also been 25,000 civil cases against the MoD by injured British troops themselves or their families. The MoD accepts and settles four in five of these cases, yet the bill brings in a total block after six years on any such claims arising from overseas deployment. The main losers will be troops with conditions such as PTSD or hearing loss, which often take years to come to terms with. Stripping British forces overseas of the employment rights enjoyed by everyone else – in UK-based forces and civilian life – breaches the Armed Forces Covenant. As the Royal British Legion director general told MPs on the Commons committee considering the bill: “I think it is protecting the MoD, rather than the service personnel.” So second, the government should remove forces personnel entirely from this part of the bill, so they are not uniquely deprived of their right to justice.
One of the most striking things for me about talking to troops and their families who have been put through the trauma of long-running investigations is they felt “cut adrift”, with no legal or welfare support. There is no duty of care recognised by the MoD to British service personnel who are subject to legal action. So third, the government should establish a new duty of care standard, providing legal, pastoral and mental health support.
Finally, the bill’s purpose is to make it harder to prosecute British troops for some of the most serious crimes under the Geneva conventions by legislating for a presumption against prosecution after five years. Crimes of sexual violence are rightly exempted, but ministers want their presumption to cover torture and other war crimes. This risks the international criminal court acting to put British forces personnel on trial in the Hague if the UK justice system won’t, and it compromises the country’s proud reputation for upholding the rules-based international order that Britain has helped to construct since the days of Churchill and Attlee. So, fourth, the government should ensure torture remains on the same legal footing as sexual crimes, and make this bill fully compliant with our international obligations.
Defence ministers may not have grasped the flaws in their legislation but parliamentarians from all parties have.
We want British service personnel overseas better protected from baseless legal action and investigation, and we want the overseas operations bill amended so it achieves this aim. As it stands, this bill is not in the best interests of British troops, British justice or British military standing in the world.