The British government is navigating rough waters with its current approach to the Northern Ireland Troubles Bill 2024. It is putting itself in a position which will lead to conflict with veterans’ groups and legal challenges. At this juncture, one road leads to never-ending litigation in an attempt to placate a vociferous minority in Northern Ireland; and the other to destroying the bond with military veterans, serving members of the armed forces and potential recruits.
The government’s actions stem from their decision to repeal and replace the Northern Ireland Troubles (Legacy and Reconciliation) Act 2023 with the Northern Ireland Troubles Bill, which will enter committee stage in the House of Commons on 19 October. The government’s stated objectives are to deliver truth and justice for the victims of the Troubles whilst protecting veterans from repeat investigations and lawfare, which is all too common in Northern Ireland. Unfortunately, the new Bill comes nowhere near shielding veterans.
Should soldiers sent to Belfast be judged differently to those sent to Basra?
The aim is to place no restrictions on families’ ability to request a fresh investigation. Every death or serious injury caused during the Troubles has already been investigated and considered for prosecution or prosecuted. The Bill purports to prevent duplication of proceedings and investigations. The means by which this duplication is to be prevented is to only allow it where in the investigator’s view it is ‘essential’. No definition of the investigator’s subjective view of what is essential is set out or defined in the Bill. The government’s examples of ‘essential’ include where there is new evidence, without any threshold as to its relevance, or flaws in a previous investigation.
These measures will permit repeat investigations. Any lawyer worth their salt can find new evidence. Finding materially relevant new evidence maybe more difficult, but that is not the test.
There must be a genuine threshold to investigations and inquests in order to prevent the historic abuse of veterans that this government recognises has happened through repeat investigations and the destruction of the confidence our armed forces, and potential recruits, have in the Armed Forces Covenant. In our view it is therefore necessary that a genuine and real filter test is included in the Act and is properly defined. A group of retired generals have put forward a definition of ‘new and compelling’ evidence. This specific wording is applied in the Overseas Operations Act 2021 and the Criminal Justice Act 2003 to repeat prosecutions. It is therefore terminology that works and the accepted legal standard which the Northern Ireland Office and government are deliberately departing from. It is also similar to the test for new evidence in civil appeals.
The dichotomy that General David Petraeus identified in these pages between the legal frameworks governing armed conflict and the realities of modern military operations is important. As he said, British service personnel are rightly required to comply with the Law of Armed Conflict and these rules are essential. However, he makes the point that the extension of human rights law to operations has blurred the distinction and is ill-fitted to scrutiny of decisions made in the heat of action 30 to 40 years later.
Importantly, statutory guidance has been given to prosecutors when considering charges against our military personnel who act, and have acted, in peacekeeping operations and operations for dealing with terrorism, civil unrest or serious public disorder abroad. This includes where there has been a previous investigation requiring that new and compelling evidence emerge before a prosecution can begin. This is under the Overseas Operations (Service Personnel and Veterans) Act 2021, where weight is given to ‘their experiences and responsibilities (for example, being exposed to unexpected or continuous threats, being in command of others who were so exposed, or being deployed alongside others who were killed or severely wounded in action, which chimes exactly with service in Northern Ireland, which is expressly excluded from the ambit of the Act). Moreover, the 2021 Act prohibits a prosecution of conduct that has been previously investigated unless there is ‘new and compelling evidence’ to support the prosecution.
There is no such guidance, or prohibition, for our service personnel acting on duty within the British Isles. They have no choice where they are deployed but they are subject to different standards if they are sent to Belfast rather than Basra. The logicality of this is difficult to discern. Are Belfast victims more important than Basra victims? Should soldiers sent to Belfast be judged differently to those sent to Basra?
The government must adopt a position under the Northern Ireland Troubles Bill that ensures there will be no duplication of investigations without new and compelling evidence. It must recognise the pressures military personnel are, and were subject to, when deployed within, as well as without, the British Isles. Otherwise the Armed Forces Covenant risks permanent breach.
