Folk Heroes, Villains and the Overseas Operations Bill — Conall Mallory

12 October 2020 by Guest Contributor

The Overseas Operations (Service Personnel and Veterans) Bill is currently progressing through Parliament. Billed as one of the most controversial pieces of legislation in recent years, it was anticipated that the Second Reading in late September would be a fiery encounter. While it may have lived up to this billing, the outcome was more of a damp squib. With the government assisted by a whip to abstain from the Labour benches, the reading passed with 331 votes in favour to 77 against.

This post reflects not so much on the content of the Bill, which has been explored in excellent detail here, here  and here but instead on how the nature of the debate was influenced by its central subjects being ‘folk heroes’ in the form of members of the UK’s armed forces, and the increasing attempt to cast members of the legal profession who seek to hold the state to account as ‘folk villains’. Induced by the various passions and allegiances associated with this proposed legislation, the presence of these adversaries obfuscated other important considerations in the debate: most notably, the law.

The Bill

The Overseas Operations Bill (‘OOB’) aims to prevent what the government has long termed as ‘vexatious legislation’ being brought against members of the UK’s armed forces for their conduct in engagements abroad.

Its principal aim is to establish a ‘triple-lock’ against the prosecution of service personnel. First, there will be a presumption against prosecution where 5 years has elapsed since the event in question. Second, where this time period has passed, prosecution is only to take place exceptionally, and certain considerations must be taken into account, including the extent to which the event had previously been investigated and the mental health of the alleged perpetrator. Third, any subsequent prosecutions must have the consent of the Attorney general.

While other aspects of the bill relate to time limits for bringing civil claims, and a requirement for the state to consider derogating from the European Convention on Human Rights, this triple-lock is its central component and indeed formed the backdrop for the Government’s projection of folk heroes and villains.

Folk Heroes

In his Lectures on the Relation between Law and Public Opinion in England during the Nineteenth Century, the constitutional theorist Albert Venn Dicey explained that there was the existence of ‘a body of beliefs, convictions, sentiments, accepted principles, or firmly-rooted prejudices, which, taken together, make up the public opinion of a particular era’.

One aspect of demonstrable public opinion in the current age is the broad support that the public give to the UK’s armed forces. In an Ipsos Mori report in 2012, 36% of respondents stated the military as the icon which makes them proud to be British. A 2013 YouGov-Cambridge survey reported that 84% of people listed the soldier as a profession they admired. A further MoD survey of 2017 found that 88% of people had a favourable opinion of the forces as a whole. As Kevin Hearty remarks in a recent article, the ‘British ‘imagined community’ have been conditioned … to view the British Army as a transhistorical force for good’. The contribution of the armed forces during the COVID pandemic will only have served to enhance their standing as a ‘folk hero’ in British society.

The presence of the British soldier therefore as the subject, and indeed at the centre, of the OOB debate gave rise to two implications. First, there were the wholly unsurprising patriotic contributions made by MPs which carry very little determinate content but speak to – and indeed amplify – the chorus of public opinion. Taiwo Owatemi MP of the Labour Party would note how ‘[m]embers of the armed forces have given years of their lives and sacrificed memories with their families to protect us and our great nation.’ Tobias Ellwood MP appealed to MPs that they needed to watch soldiers’ backs ‘if we are to ensure that the next generation of warriors step on to the parade square and wear their uniform with pride.’ Chris Clarkson MP would paraphrase an earlier comment by Tom Tugendhat MP stating that ‘[w]e the powerful must protect the strong in order to protect the weak.’

More potent, however, were the transformations of this patriotic surge into defensiveness about the quality of the Bill itself. Much of that criticism had concerned the decision to remove Torture as an exemption from the Bill at the last minute; a decision which will almost certainly make it more difficult to prosecute soldiers who commit torture and which has been criticised by independent UN human rights specialists.

The Bill’s sponsor, Johnny Mercer MP, vitriolic in his exchanges with opposition MPs, referred to criticism of it as ‘vacuous nonsense’, stating that it was ‘disgraceful that Opposition Members try to build on the back of our armed forces personnel a caricature of the Bill that is totally false.’ Ben Wallace MP, the Secretary of State for Defence, further suggested that the Shadow Minister to his office was doing ‘a disservice to our troops’ in raising concerns about the Bill. The correlation was made – criticism of the Bill was deemed to be criticism of the armed forces as a whole. Indeed, one MP, James Sunderland, would overtly make this connection, stating that: ‘I do not believe that anybody can be a supporter of our armed forces and vote against the Bill.’

The second implication of the folk hero status is that it affords a level of expertise to those MPs who had undertaken military service. In his speeches on legislative public opinion Dicey had referred to the strength of force that particular groups in society have in bringing about legislative change. Referring to them as ‘cross-currents’ of opinion, he mentioned artisans, the clergy and the army, as approaching discourse from a peculiar position, looking ‘upon the world from their own special point of view’, and being successful in their reasoning.

This was on full show at the Second Reading with a whole host of veterans in attendance, or as Tom Tugendhat MP noted, seeing ‘quite a lot of military ties in the Chamber today’. One veteran, Stuart Anderson, spoke that while he had previously held the House in disdain, he now sought to contribute to Parliament’s understanding of the armed forces: ‘There are new Members in; let us help to educate the House from our perspective’.

Tugendhat, a former Major, noted his expertise on the issue with a declaration that he had published a report on the subject under consideration in the debate as early as 2013. James Sunderland MP, also a veteran, reminded Members of the dangers of warfighting, ‘with confusion all around, friends falling beside you, sweat dripping into your eyes, the ground exploding, people moving in every direction, images of family flashing before your eyes and abject terror everywhere.’ He also sought to give authority to the Bill by reminding other members that its architect (Mercer) was himself a veteran. Richard Drax MP opted to defer expertise to those who had served asking ‘[c]an we possibly, with few exceptions—honourable exceptions—really understand what they have gone through and are going through? I do not think we possibly can’.

And what of the former military leaders who had criticised the Bill in the week leading up to the debate? Stuart Anderson MP, whose speech would be a powerful first-hand account of battle, minimised their input due to their distance from the battlefield: ‘I have served on operations with some of those people. None of the riflemen, junior non-commissioned officers and young officers has been mentioned, and their fear of ambulance-chasing lawyers and this lawfare should be brought in as well.’

Thus, this Bill, perhaps more than any other, has invoked the passions and allegiances towards the military, spanning from the ordinary citizen on the street that revers the man in uniform, to politicians who, owing to their former military positions, have taken significant interest in its content and implications. This ‘folklorism’, while perhaps engendering educated and informed responses from those with a real understanding of who the Bill will apply to, does so entirely at the cost of other important factors for consideration.

The Folk Villain

With comments from both previous and current Prime Ministers, and repeated attacks from the current Home Secretary, we very much live in an age where the ‘activist lawyer’ is being cast as a folk villain. This may not apply to every member of the legal profession, but certainly it is a criticism subjected to those who seek to hold the state to account, particularly in human rights and immigration cases. In the OOB debate the central villain was clear – Phil Shiner and the, now disbanded, Public Interest Lawyers. Again, a hardly surprising angle to take given that it was Shiner’s misconduct and subsequent demise that provided the cover for the closure of both the unit investigating military personnel offences in Iraq (IHAT) and Afghanistan (Northmoor). Shiner, therefore, was thus cast in the unsurprising role of central villain in the debate.

Yet, looking beyond the activities of this one firm, there was a clear narrative advanced that all members of the legal profession who pursued claims against the military or state were equally disgraced. Ben Wallace MP would do so implicitly, referring to Shiner ‘and his like’. Jamie Stone MP for the Liberal Democrats was more express, noting ‘I have no particular love for lawyers, particularly of the grasping variety’. Martin Docherty-Hughes MP of the SNP referred to the actions of ‘vicious lawyers’. Kevan Jones MP for Labour stated that he was ‘no friend of unscrupulous lawyers.’

This is seen further in the narrative projected by MPs of what motivated litigation against the armed forces. According to Ben Wallace MP, introducing the Bill, this was solely a financial venture. He noted ‘[w]hat mattered to the ambulance chasers was the money—the legal aid income, the commissions on compensation claims.’ They were ‘motivated not by the search for justice, but by their own crude financial enrichment.’ John Redwood MP would echo this calling them ‘money makers’. Andrea Jenkyns MP referred to their work as ‘profiteering ventures’. Johnny Mercer MP suggested that the cases were ‘generated simply to build the financial position of solicitors.’

Richard Drax MP would take a broader approach. Not only were soldiers exploited by ‘unscrupulous lawyers’, but also by ‘scrupulous lawyers who genuinely feel that they have a legal duty to protect their clients’ claims and investigate them.’ This expands the group of villains to comprise not only those who acted improperly, but also those who the Prime Minister framed recently as ‘do-gooders’. This was echoed by Carla Lockhart MP of the DUP, who extended the villain category to encompass ‘self-styled rights activists’ and ‘investigative journalists’.

What did this vilification of the legal profession achieve? It buried the critical legal issues in the debate; not only was it deemed anti-military to criticise aspects of the Bill, or unpatriotic to agree with aspects of it and disagree with others, but highlighting flaws in the Bill was tantamount to supporting ‘dodgy lawyers’.

Of Heroes and Villains

The initial problem with having folk heroes and villains is that, inevitably, their story is part of a fairy-tale; fiction removed from reality. The principal casualty of attempting to simplify highly complex, divisive events, into two sides, is the truth.

While no doubt many British soldiers served their nation honourably in the Iraq and Afghan Wars, there is considerable evidence to suggest that there was misconduct, particularly in the treatment of detainees. That conduct continues to form the basis of a Preliminary Examination at the International Criminal Court. The difficulties and inadequacies in initial investigations mean that, much like in Northern Ireland, truth may be permanently obscured. Similarly, while the great villain of this particular tale is cast as the ‘activist lawyer’, it was one of those ‘activist law firms’ – Leigh Day – who represented soldiers in the Supreme Court case that would finally recognise the application of the ECHR to service personnel while deployed overseas. Much earlier, it had been the great villain Public Interest Lawyers who had brought the first case against the Blair government on behalf of two soldiers’ mothers attempting to question the legal advice given before the Iraq War. They would later bring cases on behalf of soldiers in respect of equipment failures.

Beyond this distortion of historical narrative, the great challenge of the portrayal of a folk hero under threat is the malleability of their villain.  As the late Kevin Boyle is said to have humbly recounted in the new biography of his life by Mike Chinoy, the (activist) lawyer is no more than a plumber: ‘[P]eople much cleverer than us made this system – all the tubes and pipes. And then when the tubes and pipes are not working or leaking, the plumbers come in’.

Once the government has finished attacking the plumbers, it will return for the pipes. In other words, the folk hero is as influential an adversary for the law as they are for the lawyers. This game is already afoot. The OOB will weaken the Human Rights Act.  That Act is already subject to review, alongside a broader review of administrative law. In recent weeks we have also seen the United Kingdom’s commitment to international law becoming increasingly selective. In this wider tale of heroes and villains, the stakes are high, for it is the very essence of the rule of law that is in play.

Conall Mallory is a Senior Lecturer in Law at Newcastle University. The views expressed in this article are those of the author alone.