Conflict and the constitution

By: Dexter Govan

Last Monday on BBC One, Panorama broadcast allegations that a Special Air Service (SAS) squadron operating in Afghanistan repeatedly killed detainees and unarmed men in suspicious circumstances from November 2010 to April 2011.[1] The grave allegations seem well substantiated on the part of the programme’s producers, and if true, they suggest that the SAS was involved in at least 54 unlawful killings in just one six-month tour. Clearly, the SAS operated in larger numbers and across a longer duration than was examined in the programme. Unsurprisingly, the show attracted a wide audience. 

It remains unclear what the consequences of Panorama’s allegations will be, but should they lead to an investigation and subsequent legal action, they will highlight exactly the kind of incidents which the government had sought to mitigate with their introduction of the Overseas Operations Bill last year. Significant opposition to the Bill from across the political spectrum led to substantial amendment, and the Bill was eventually passed as the Overseas Operations Act, 2021. The Act includes an exception for war crimes which means it is unlikely to protect those involved in the alleged crimes documented by Panorama. 

Yet despite those amendments and the continued criticism of human rights organisations, the Act features two components relating to criminal prosecutions which significantly alter the prospects of future cases being taken forward against UK service personnel: 

  • It creates a statutory presumption against prosecuting service personnel and former service personnel provided the incident occurred more than five years ago and outside the “British islands”.
  • If the case is outside these boundaries, the Attorney General must then consent to the prosecution.

In addition to these hurdles against criminal prosecution, the Act also creates a limit of six years in which civil cases can be brought against service personnel. 

Speaking in support of the measures, current Defence Minister Ben Wallace suggested they were necessary to prevent the vexatious targeting of service personnel by lawyers more interested in money than justice. His speech in moving the Bill is worth quoting at some length: 

[The] Bill does raise the threshold for prosecution, thereby reducing the likelihood of investigations being repeatedly reopened without new and compelling evidence. It does ensure recognition of the unique circumstances of overseas operations, including the constant threat to life and repeated exposure to traumatic events. It does take into consideration the public interest in criminal and civil cases’ being brought to a timely resolution, so that the courts can assess them while memories are fresh and evidence is more readily available. That is entirely in line with the principles of the ECHR [European Convention on Human Rights]. In short, the measures do provide greater protection from the likes of Phil Shiner Solicitors, whose motivations were not justice but money.[2]

By contrast, the Law Society “remain concerned about the practical effect of the Act on access to justice and the rule of law”.[3]

At its heart, the Overseas Operations Act exposes tensions which have long existed between the constitution and the very nature of warfare. Indeed, at various times for at least the last century different administrations have sought to redefine the boundaries of conflict and rights through legislation and interpretation. As conflict and the constitution have developed, these boundary debates have recurred. Whether such reforms are necessary updates to our legal code or methods of excusing the inexcusable remains a topic of fierce debate today. 

To begin at the start of the twentieth century, the Aliens Restriction Act (ARA) of 1914 significantly altered the rights of foreign nationals in the UK in light of the First World War. The ARA introduced a raft changes: notably, it imposed migration restrictions on those attempting to enter the UK, it allowed for the deportation of those already resident and it required so called ‘aliens’ to reside or remain within specified places or districts. These could be defined in times of emergency by Order in Councils, taking power away from parliament. In 1919, the Act was then adapted and expanded to encompass criminals, paupers and other ‘undesirables’.[4] Its implementation marked a significant moment of change in the British constitution, and yet, amid the First World War, this fact was relegated to the periphery. 

Jump forward to 1971 and in Northern Ireland the Ulster Unionist Party in collaboration with the Heath administration utilised the Special Powers Act of 1922 to change the rules of engagement in a conflict of a different kind. The early years of the Troubles had rocked Northern Ireland, and with fatalities mounting and more conventional policing actions failing to halt the tide, Brain Faulkner, Northern Ireland’s Prime Minister, introduced internment without trial. The move meant individuals suspected of involvement in paramilitary activity, especially involvement in the Provisional IRA, could be detained without trail. Supposed paramilitaries, or persons ‘suspected of acting or having acted or being about to act in a manner prejudicial to the preservation of the peace and the maintenance of order in Northern Ireland’, were thus made exempt from a fundamental aspect of the rule of law.[5] Again conflict had prompted a government to alter, and likely undermine, an aspect of the constitution. 

More recently, in January of 2017, then Attorney General Jeremy Wright “updated” the British public about the legality of pre-emptive drone strikes against terrorist targets. At a speech to the International Institute for Strategic Studies, Wright conceded that international law bound the UK “both as a central tenet of our constitutional framework and as a distinct legal regime at the international level”.[6] Despite this, he argued that the law cannot “stand still”. Instead, the UK had to be prepared and able to act using lethal force against actors intent on imminent terrorist violence if the host state was unable or unwilling to act. He went on to suggest a basis by which such threats might be assessed and standards which could be required for action. Nonetheless, in response to the changing demands of conflict, Wright suggested a substantial deviation from constitutional norms. Wright went on to be a prominent critic of the Johnson administration and while his speech in 2017 went largely unnoticed, it suggests that the will to modify constitutional norms extends beyond the present government. 

Indeed, the point I’ve tried to make across this short blog is that as conflict has evolved over the last century, various administrations have sought to implement legislation and adjust constitutional norms in response. The 1914 Alien Restrictions Act changed the rights of foreign nationals and distinguished them from UK citizens. Internment in Northern Ireland in 1971 allowed suspects to be held without trial. As drone technology has allowed the government to carry out preemptive strikes on terror targets abroad, so too has the government’s interpretation of international law changed. And, most recently, the Overseas Operations Act, 2021 has created exceptions in law for service personnel. 

Regardless of the consequences of such wrangling for good or ill, and it is usually for ill, it is enough here to note that over the last century many significant alterations to our constitution have come under the guise of legislation or acts by governments designed to deal with conflict. That these actions have changed the realm outside conflict has been too little reflected on. We would do well to redress the balance. 

Dexter Govan. 

Dexter Govan is the communications manager and researcher of the Constitution Society. He holds a doctorate from the University of Edinburgh and is a historian of unionism in Britain and Ireland.

The Constitution Society is committed to the promotion of informed debate and is politically impartial. Any views expressed in this article are the personal views of the author and not those of The Constitution Society.





[5] The Civil Authorities Act Northern Ireland 1922–43, Regulation 12.