WHY CIVIL CLAIMS ARE A NECESSARY PART OF THE ARSENAL TO ADDRESS MILITARY EXCESSES : Assessing the UK Overseas Operations (Service Personnel and Veterans) Bill

Abstract

This paper focuses on civil claims for personal injury and/or death and claims under the Human Rights Act 1998 in respect of overseas operations. The Bill sets out several rationales for the introduction of the reforms to civil and human rights claims, and we saw value in scrutinising these justifications in some depth, given the significance of the proposed reforms and the limited attention they have received to date. As we will explain, the civil claim longstop would have the effect of shielding the Ministry of Defence from public scrutiny and legal accountability and would take away crucial means by which to ensure transparency and to promote institutional lessons learned. To make this assessment, we have carried out a review of civil and human rights judgments pertaining to overseas operations, issued within the last twenty years. These have mainly concerned claims against the Ministry of Defence, though our sample has also included claims involving overseas engagements by the security services and other parts of government to the extent relevant. Some might assume that that introducing time limits and related restrictions to civil claims or claims under the Human Rights Act in relation to overseas operations is a relatively minor access to justice intrusion. There is somewhat more acceptability of limitation periods in respect of civil claims for damages than with criminal investigations and prosecutions. Our research has led us to see these issues differently. We argue that: i) Considering the checks and balances within the UK legal system and how it operates as a whole, impeding access to civil and human rights claims ignores the vital role such claims play in ensuring that criminal investigations and prosecutions and related accountability processes are not shut down prematurely. A crucial means of oversight will be lost; ii) Victims’ access to reparation is an important value worthy of protection and a fundamental and obligatory aspect of UK human rights obligations. This is especially the case for claims involving wrongful death, torture, and ill-treatment; and iii) The introduction of limitation periods for civil and human rights claims without a possibility for judges to be able to use their discretion to extend them where the exigencies of the circumstances so require, is a significant and unjustifiable limitation of claimants’ access to reparation.