Policy and legal background
- This Act aims to provide greater certainty for Service personnel and veterans in relation to claims and potential prosecution for historical events that occurred in the complex environment of overseas operations.
- This Act seeks to address issues that have partly arisen from the expansion of the European Convention on Human Rights (ECHR) to cover overseas military operations where the UK had assumed that international humanitarian law had primacy.
- It also raises the bar for prosecutions in relation to alleged historical incidents that occurred on overseas operations, requiring prosecutors to have proper regard to the uniquely challenging context.
- The measures aim to provide greater certainty by reassuring Service personnel and veterans that prosecution decisions must take into account factors as specified in the Act and that prosecutions will only go ahead in exceptional cases.
- International humanitarian law was developed to regulate the conduct of combat operations and recognises the inherent risks and dangers both for Service personnel and for the local population. It imposes obligations that are realistic and reasonable to expect the Armed Forces to meet even when operating in hostile conditions overseas. However, judgments in Strasbourg and the UK’s domestic courts in relation to operations in Iraq and Afghanistan confirmed the applicability of ECHR to overseas military operations, and the actions of the MOD and UK Service personnel.
- Operations in Iraq in 2003-2009 (Operation Telic) and Afghanistan in 2002-2017 (Operation Herrick) gave rise to an unprecedented number of legal claims for damages and non-compliance with the UK’s obligations under the ECHR. MOD faced approximately 1,400 judicial review claims and over 900 civil claims for compensation arising from the 2003-09 operations in Iraq and around 100 claims arising from operations in Afghanistan. In some cases, the courts found that the UK’s legal obligations were breached: they ruled that detention processes were flawed and that some practices which constituted inhuman or degrading treatment were prevalent.
- There were also instances of criminal behaviour, where individuals were prosecuted for serious criminal offences. Nothing in this Act will stop those suspected of committing criminal acts from being prosecuted, where appropriate.
- UK Service personnel and veterans have been subject to numerous claims – including those that were ultimately discredited, or were brought in multiple jurisdictions, or were found to have been encouraged by lawyers pursuing financial gain.
- As announced in the then Defence Secretary's Written Ministerial Statements of 21 May and 22 July 2019, a 12-week public consultation on proposed legal protections measures for Service personnel and veterans who served in operations outside the UK was launched on 22 July 2019. The consultation set out three main proposals which would be beneficial to Armed Forces personnel and veterans: a statutory presumption against prosecution, a new partial defence to murder, and a time limit on civil litigation claims for personal injury/death. There were over 4,200 responses to the consultation. These responses helped to shape the measures in this Act.
