The Overseas Operations (Service Personnel and Veterans) Bill

November 10, 2020

The Overseas Operations Bill (Service Personnel and Veterans) recently passed its third reading in the House of Commons.  Although the Bill was cleared by 345 votes to 260 with a majority of 85, it continues to generate controversy.

The main purpose of the Bill is to provide greater legal protections to Armed Forces personnel and veterans serving on military operations overseas.

The Bill:

  1. creates a “triple lock”, to give personnel and veterans greater certainty that the pressures placed upon them during overseas operations would be taken into account when prosecution decisions for alleged historical offences are made. The triple lock consists of:
      • a presumption against prosecution for alleged offences committed more than five years ago;
      • a requirement for prosecutors to give weight to certain matters when reaching decisions in such cases;
      • a requirement to obtain the consent of the Attorney General, or the Advocate General in Northern Ireland, before any prosecution can proceed.
  2. introduces time limits on bringing civil claims in connection with overseas operations (further details below).
  3. places a duty on the Government to consider derogating from the European Convention on Human Rights in relation to significant overseas military operations.

The Government has made clear that the Bill does not place Service personnel above the law and that they will continue to be “held to the highest standards of personal behaviour and conduct” and that “credible allegations of serious criminality” will continue to be investigated.

Time limits on bringing civil claims in connection with Overseas Operations

The Bill amends the relevant limitation periods for initiating civil claims for personal injury or death relating to Overseas Operations.

“Overseas Operations” are defined as “any operations outside the British Islands, including peacekeeping operations and operations for dealing with terrorism, civil unrest or serious public disorder, in the course of which members of H.M. Forces come under attack or face the threat of attack or violent resistance.”

The Bill does not alter the primary limitation period set out in Sections 11 and 14 of the Limitation Act 1980 which require a claim to be brought within 3 years of the accrual of the Claimant’s cause of action based upon the date of injury or, if later, date of knowledge. However, the Bill seeks to introduce a long-stop date of 6 years from the date of the accrual of the Claimant’s cause of action after which the Court will not be permitted to exercise its discretion under Section 33 to disapply the primary limitation period if the claim was not brought within 3 years.

Further, the Bill seeks to amend the Section 33 discretion by requiring the Court to consider additional factors when deciding whether to disapply the primary limitation period in relation to Overseas Operations. The Bill requires the Court to ‘have particular regard’ to the impact of the operational context on the ability of Members of the Armed Forces to remember events or actions and to keep records of them. The Court must also have particular regard to the likely impact of the action on the mental health of any actual or potential witness who is a Member of the Armed Forces.

Louis Browne QC and Andrew Ward from Exchange Chambers’ Personal Injury Defence Team have been monitoring the progress of the Bill through Parliament.

Louis said: “Since the removal of Crown Immunity on 15th May 1987, current and former Armed Forces personnel have been able to bring civil claims against the Ministry of Defence for personal injuries sustained during military service. The Bill proposes a significant change by departing from the existing limitation provisions in respect of military claims arising from Overseas Operations.”

Andrew added that: “The Ministry of Defence is already able to deploy the defence of Combat Immunity in respect of civil claims arising from personal injuries sustained in active combat with the enemy. The scope of Combat Immunity was clarified by the Supreme Court in Smith & Others -v- Ministry of Defence [2013] UKSC 41. However, the amendment to the limitation periods proposed by the Bill will still have an impact because the definition of ‘Overseas Operations’ is broader than the circumstances in which Combat Immunity can be relied upon.”