Don’t believe the hype. Service Personnel must be bound by – and protected by – the Human Rights Act.

The Government has today published its ‘Overseas Operations (Service Personnel and Veterans) Bill’ – a bill that will end so-called ‘vexatious claims’ against troops. The Bill introduces a presumption against prosecution if 5 years have passed since an alleged crime involving a service person overseas; and will restrict the court’s ability to allow compensation or human rights claims to be brought out of time.

The Government says it does not want to undermine the rule of law, or stop serious wrong doing from being identified and punished – but it cannot have it both ways.  If you think that wrong doing needs to be investigated and punished, that has consequences. You accept that there needs to be an investigation to find out what happened. And you accept that such an investigation should be conducted by those with sufficient independence and skill to do it.  In Northern Ireland, Afghanistan and Iraq, in most cases, that did not happen inside 5 years or at all. Instead, the most serious allegations were initially investigated by the chain of command itself or by the Royal Military Police who were not independent. And, as we know from domestic cases like Deepcut and the overseas case of Cpl Anne-Marie Ellement, those early investigative failures mean that everything that follows becomes – inevitably – the fruit of the poisoned tree.

It is those failed early ‘investigations’ into alleged wrong doing that made it possible and in many cases necessary to conduct further investigations years later. The actions of one struck-off solicitor do not absolve the Ministry of Defence of responsibility for this state of affairs.

This is where Mr Mercer MP’s attention would be better directed. The lack of independence in our service justice system remains a problem today. The Service Justice Review that was published earlier this month specifically warned that some commanding officers that were involved in the investigation of certain kinds of offences lacked independence and impartiality when dealing with them; and that investigations conducted by service police were inevitably affected by their belief that they were ‘soldier first’. This is an old problem and something that the Chief Inspector of Constabulary warned of years ago. For that reason, the Review recommended a range of reforms that would enable greater independence to be brought to bear in the way in which the Armed Forces deal with the most serious crimes. The MoD has already rejected the most important recommendation – that murder, manslaughter and rape cases in the Armed Forces should be handled by independent civilian authorities.  But it is that lack of independence that needs to be addressed and, if it were, would ensure that this problem could not recur. Because if credible allegations are investigated promptly and effectively within a reasonable period of time, they can be put to bed one way or another. Victims get justice. The falsely accused are exonerated.

There are many other problematic aspects to the Bill. Legislating to tie the prosecutor’s hands (to allow them to prosecute after 5 years only in exceptional circumstances), wholly ignores the fact that prosecutors can already factor in (as part of the ‘public’ or ‘service interest’ test) such considerations as the length of time that has passed since the event, the context in which it took place and the impact on the community of a prosecution, when deciding whether or not to charge someone. They already have the authority they need.

And the civil ‘longstop’ proposals will be a disaster for service people trying to bring claims out of time – something that is sometimes unavoidable because of the trauma they have suffered. The courts already have very strong powers to ensure that vexatious or stale claims don’t go ahead and they can and do strike them out all the time. It is manifestly not in the interests of service men and women – and it is manifestly in the interests of the MoD – to make it harder for service people to bring their claims. This includes claims under the Human Rights Act – which service people or their families have used over and over again, for example, to force the Government to hold independent investigations into their loved ones deaths (Deepcut); to require someone sitting behind a desk in Whitehall to ensure that the equipment soldiers are given when they are asked to put their lives on the line is reasonably adequate (Snatch Landrover and Challenger cases); or, where a soldier alleges she had been raped by her fellow soldiers overseas, that there should be an independent, competent investigation and prosecution (Ellement).

If you believe in the rule of law – and the service men and women we work with do – look past the hype and see these proposals for what they are: a law that will make it harder for injured service personnel to seek redress, and easier for the MoD to turn a blind eye.