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15 November 2017 | Comment | Article by Simon Ellis

New legislation limits ability to sue individual Armed Forces servicemen


It has been reported that The Armed Forces (Statute of Limitations) Bill 2017-19 is to have its second reading in the House of Commons on 15 June 2018. To quote Richard Beynon, who first proposed the bill, the purpose behind the introduction of this Bill is, “to create statutory limitations on court proceedings against current and former members of the armed forces for certain alleged offences committed during military operations or similar circumstances; and for connected purposes”.

This Bill had its first reading by Mr Beynon, the sitting Conservative MP for Newbury, on 1 November 2017. Mr Beynon is also a former British army serviceman.

Background

The introduction of this Private Members Bill has its roots in the public outcry following the investigation of British Armed Forces personnel for alleged breaches of international rules of war and the subsequent claims for compensation being brought against them.

In some instances veterans of the Iraq war were being investigated for alleged war crimes many years after they had served. Many of these allegations were brought in circumstances where the quality and availability of evidence was questionable and where no initial allegations of criminality had even been raised. Such veterans were being contacted out of the blue by lawyers claiming compensation on behalf of clients, alleging unsubstantiated war crimes supposedly perpetrated many years previously.

These compensation claims, most famously brought by Phil Shiner’s now defunct law firm Public Interest Lawyers (PIL), were funded by public money and were to a large extent wholly spurious in nature.

The Iraq Historic Allegations Team (IHAT) was set up by the Government in March 2010 to investigate allegations of abuse and torture by British soldiers in Iraq. Shiner’s firm PIL “led the pursuit of legal claims against British troops for their treatment of Iraqi detainees after the 2003 invasion“. They allegedly passed on approximately 65% of the 3,500 or so allegations received by IHAT.

In 2016 the Legal Aid Agency (LAA) ruled that PIL had breached contractual requirements and without the funding necessary for its survival, the firm ceased operation in August 2016 as a consequence. The LAA took its decision after reviewing information submitted by the firm, following a Solicitors Regulation Authority investigation. The then Defence Secretary Michael Fallon said the firm’s closure was the “right outcome for our armed forces”.

In 2017, after MPs called it an “unmitigated failure”, it was announced that the IHAT investigations would no longer continue. According to the Defence Committee report, IHAT had taken on approximately 3,500 allegations of abuse, most not having any credible evidence. The report found failings in how investigations were conducted and concluded that those individuals being investigated had suffered unreasonable stress, damage to their careers and had effectively put their lives on hold.

In 2017 Phil Shiner was struck off the roll of solicitors over misconduct relating to false abuse claims against British troops.

Notwithstanding the demise of PIL and IHAT, claims continue to be contemplated against British armed forces personnel. In the Bill’s first reading to the Commons, Richard Beynon referred to the ongoing case of a 78 year old former “exemplary soldier” who faces charges including attempted murder. This is related to an incident in 1974 when a patrol he was leading in Northern Ireland, at a time of intense terrorist activity, fired on an individual who was killed. Despite being told in 1975 that no action would be taken against him or any member of his patrol, and confirmation of the same many years later from the Director of Public Prosecutions, new evidence has allegedly come to light. As himself a veteran of Operation Banner, (the operational name for the British Armed Forces‘ operation in Northern Ireland from August 1969 to July 2007) Beynon expresses concern as to the quality and availability of evidence at this late juncture, not to mention in this context, any potential form of retributive politics, where extreme nationalist-leaning individuals in the Northern Ireland justice system have decided to reignite such investigations.

The investigation of armed forces personnel for alleged conduct contrary to international rules of war has been widely condemned and viewed by the general public as the unacceptable persecution of individuals for whose service we should be indebted. Johnny Mercer, the Conservative MP for Plymouth Moor View and a retired Army captain is supportive of the Bill. He has argued that the historic investigation of claims is akin to “trying to retrospectively apply European Human Rights Law to the battlefield “.

If the Bill becomes law there would be a statute of limitations, after which time it would be impossible to bring a case against any individual about whom an allegation was made regarding actions he or she took while serving on operations. At this initial stage a period of 10 years has been suggested as the most appropriate for which to legislate, as this would ensure legitimate cases can go forward before the “evidential trail starts to run cold”. Again, at this preliminary stage, the detail has yet to be worked out, not least what exceptions may apply and the definition of “operations”.

Passage of the Bill through Parliament

The Bill must pass through both the House of Commons and the House of Lords. Both Houses must agree on the exact wording of the Bill. Once they do agree, the Bill must receive Royal Assent. After Royal Assent has been given, the Bill becomes law.

There are various factors that determine how quickly a Bill can become law, such as any amendments or objections being raised, but the average timescale is one year.

Given the current public goodwill toward our armed forces, it seems likely that the Bill will ultimately become law. Although a smooth transition through both Houses is dependent on the detail, which has yet to be debated.

This new legislation should be welcome news for any veterans of Her Majesty’s Armed Forces. When it becomes law next year it will allow them to know they can move forward with their lives without actions taken while serving their country hanging over their heads indefinitely.

Author bio

Simon Ellis is a Partner with Hugh James and has worked with the firm for more than 25 years, having trained and qualified here. Simon heads up the Military Department, advising and assisting current and former military personnel with various health conditions and injuries. He specialises in claims such as hearing loss, non-freezing cold injuries, compartment syndrome and military injury cases. He is often asked to advise on more unusual claims in the military context.

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