Asking (some of) the right questions …

15th Jul 2020

Hot on the heels of a leaked letter from Judge Advocate General (JAG) Jeff Blackett last month, in which the most senior judge in the UK’s military justice system expressed his ‘significant misgivings’ about the Overseas Operations Bill to the Defence Secretary, comes a punchy letter from the Chair of the Defence Committee, Tobias Ellwood MP.

Mr Ellwood now has some tricky questions for Mr Wallace. Why did he not consult the JAG about the Bill? Who was involved in drafting it? Why have they alighted on a random 5 year cut-off period beyond which they presume prosecutions of soldiers should not be brought? Why are the powers the CPS already has not sufficient to deal with cases fairly? And will the Bill not just make it more likely that British soldiers will be hauled before the International Criminal Court, something the UK Government is presumably keen to avoid?

He might have added a question or two about why the Defence Secretary thinks it appropriate to make it even harder for service personnel and victims to bring legal claims against the MoD, something many of us who work with serving people and traumatised or injured veterans are very concerned about. He might have also pointed to the absurdity of the proposal to legislate to prevent soldiers being prosecuted for war crimes, in circumstances where the Director of Service Prosecutions has recently confirmed that none of the original allegations against British soldiers will actually result in a prosecution anyway.

The Bill is badly drafted. It does not reflect the consultation document that preceded it in a number of ways. It reads like a piece of legislation that has been prepared mainly for the purpose of seeking lazy headlines. It totally fails to address the real causes of the present state of affairs – which is the lack of competent, independent criminal investigations being brought within a reasonable period of time of allegations against British soldiers being made. In Northern Ireland, Afghanistan and Iraq, in most cases, there were no such investigations. Instead, allegations were initially investigated (if at all) by the chain of command itself or by the Royal Military Police who were not sufficiently independent or competent. That has made it possible, years down the line, for arguments to be made that independent investigations into abuse remain outstanding.

That was absolutely the fault of the MoD who – instead of getting to grips with the practical recommendations of the recent Service Justice Review that would have addressed some of those issues in a careful, evidence-based way – chose to spend its time trumpeting this poorly drafted piece of legislation and sounding off about how supportive they are of veterans. But this Bill is in no-one’s interests, other than the MoD. We hope the Defence Secretary will carefully consider the Chair’s very important questions and, in so doing, recognise the flaws in his approach and drop a Bill which amounts to a fundamental assault on the rule of law and access to justice in this country.



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