Legislation needs to be clear so that citizens can understand it and parliamentarians know what they are voting for. The need for clarity in legislation is set out as the first principle of Bingham’s definition of the Rule of Law, and the need for intelligibility in legislation is a requirement of the Venice Commission Checklist on the Rule of Law. This is one of the rationales for a parliamentary democracy. The Overseas Operations (Service Personnel and Veterans) Bill is designed to offer legal protections to UK armed forces, and the Ministry of Defence, in relation to overseas military operations. The Bill’s Second Reading took place this week in the House of Lords. But the Bill is disingenuous: in form it is about protecting veterans, whilst in substance it is about protecting the Ministry of Defence.
Part 1 of the Bill places restrictions on prosecutions of service personnel. If the conduct took place overseas and more than 5 years ago, then those service personnel can only be prosecuted in exceptional circumstances.
Part 2 places restrictions on bringing civil claims against the Ministry of Defence and service personnel. If a claim is brought after three years, the Bill creates barriers to a claim being heard, for example, by limiting the court’s discretion to hear claims outside the normal time limits.There is an absolute bar on bringing these claims after 6 years. Similar limitations are introduced in respect of claims under the Human Rights Act 1998.
There is much in this Bill which undermines respect for the Rule of Law, see for example the report of the Joint Committee on Human Rights as well as the very comprehensive report of the All Party Parliament Group on Drones. The Bingham Centre Report goes into more detail on these points.
This paper looks at a slightly less obvious objection to the Bill, which is that under the guise of doing one thing, it is actually doing another. It is poor constitutional practice if the point of a Bill that parliamentarians are voting on is not entirely clear on the face of that Bill.
Name of the Bill
Part of the requirement of clarity in legislation is an obligation for the title of a law to give a clear and fair description of its content. The need for a neutral and non-partisan title is set out in Erskine May:
[the short title of a Bill] must describe the content of the bill in a straightforwardly factual manner. An argumentative title or slogan is not permitted.
Graeme Orr has observed a problem in the titling of Bills – “a loss of descriptiveness in titling in favour of an image-conscious and rather cynical form of political rhetoric”. The nadir of this can be seen in American Legislation, for example the USA PATRIOT Act (an acronym for Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism). And yes, that is its actual name.
The short title of the Bill is the Overseas Operations (Service Personnel and Veterans) Bill.
There are two difficulties with this short title.
Firstly, there is the inclusion of the word “veterans”. Veteran does not have a legal meaning. It does not appear anywhere in the Bill other than in the title. It is already encompassed within the broader term “service personnel”. There are no special rules which apply to “veterans”. It has no legal significance. In short, it has zero legal effect.
It is hard to escape the conclusion that the only reason why veteran is part of the title is rhetoric. There is nothing wrong with rhetoric, but it should be made in a speech in support of the Bill, rather than as part of the actual language of the Bill. As Erskine May says, the title should not be argumentative or a slogan. Making veteran part of the Bill title arguably seeks to game the argument in favour of the Bill, because who could be against a Bill which is supporting veterans? As Daniel Greenberg observed, protecting the Rule of Law is more important than a transient political slogan. To include ‘veteran’ in the Bill title is a political argument masquerading as a legal provision.
Secondly, there is what the title leaves out. It refers to service personnel (which is accurate) and doubles up with a reference to veterans. But the Bill is not only about service personnel, it is also about protecting the Ministry of Defence and the Secretary of State for Defence from civil claims. The solider with boots on the ground is referenced twice in the title, but the other beneficiaries of the Bill are not referenced at all. At best this is disingenuous, giving the impression that the Bill is only about protecting service personnel when in fact half the Bill is about protecting the MoD from civil claims.
Identifying beneficiaries of the Bill
In Part 2 of the Bill, clauses 8, 9 and 10 concern restrictions on time limits for bringing legal claims. In the body of these clauses there is reference to actions in respect of “personal injuries or death which relate to overseas operations of the armed forces”. These clauses then point the reader to the detailed and technical provisions in Schedule 1 which actually make these changes. It is only after delving into the detail of Schedule 1 does one realise that the protection extends to the Ministry of Defence and the Secretary of State for Defence, as well as members of the armed forces.
The majority of legal claims for damages will not be against actual soldiers. Most claims for damages will be against those with deep pockets, such as the MoD. The principal beneficiary of Part 2 is therefore the Government, and in particular, the MoD. But this is not apparent upon the face of the Bill and only becomes apparent after delving into the technical details in Schedule 1. Once again, this makes the Bill disingenuous as it gives the outward appearance of only protecting one set of persons, whilst in fact mainly protecting another.
This lack of legal clarity in the Bill is reinforced by the lack of clarity of Government in introducing the Bill. During the debate at Second Reading in the House of Commons, Ben Wallace MP, Secretary of State for Defence made much about protecting “the men and women of our armed forces”. At no point in Second Reading did he mention the phrase “Ministry of Defence”.
When it came to his specific explanation of the purpose of Part 2 of the Bill, the only beneficiaries cited in this portion of his speech were service personnel who need to be protected from giving evidence. The Secretary of State for Defence conspicuously failed to state that the main beneficiary would be the Ministry of Defence. We had to wait for Steward Malcolm McDonald MP to make the point in that debate that
I have to say that this looks like a Bill designed more to protect the Government, and in particular the Ministry of Defence, rather than anyone who dons a uniform.
John Healy MP, the Shadow Secretary of State for Defence has now pointed out that the Bill “does more to protect the Ministry of Defence than our armed forces personnel”.
This disingenuous approach is continued in the explanatory notes attached to the Bill. In the Overview, those notes are explicit about restricting prosecution of service personnel, but when it comes to restricting civil claims, the identity of the beneficiaries is not mentioned. In the Policy Background section, it states “This Bill aims to provide greater certainty for Service personnel and veterans in relation to claims and potential prosecutions for historical events”. This is not false, but in mentioning service personnel but omitting to mention the MoD, it is extremely misleading, giving the wrong impression that this Bill is only about protecting soldiers, when it is also about protecting the MoD from civil claims.
Conclusion – clarity in legislation matters
“When I use a word” Humpty Dumpty said in rather a scornful tone, “it means just what I choose it to mean — neither more nor less”
The words and the form of legislation matters, and they ought to give a clear indication of the content and effect of that legislation. Sir Stephen Laws, a former First Parliamentary Counsel said that legislative drafters must not “debase the coinage of communication”.
When legislation contains words like “veteran” which have zero legal effect, this debases the coinage of communication.
When we say the Bill is about protecting service personnel when it is more to do with protecting the Ministry of Defence, then we are taking the Humpty Dumpty approach to meaning.
Dr Ronan Cormacain, Senior Research Fellow at the Bingham Centre for the Rule of Law
A more detailed report on this Bill has been prepared by the Bingham Centre for the Rule of Law as part of its Monitoring of Legislation project, and is available here.
(Suggested citation: R. Cormacain, ‘Protecting Veterans or Protecting the Ministry of Defence? Clarity in the Overseas Operations Bill’, U.K. Const. L. Blog (22nd Jan. 2021) (available at https://ukconstitutionallaw.org/))