Overseas Operations (Service Personnel and Veterans) Bill: A Rule of Law Analysis

The Principle of Legality The most basic and core principle of the Rule of Law is the principle of legality – that we are all subject to the law. [...] Instead, multiple experts underlined the efficacy of the existing prosecutorial system in striking out unmeritorious claims and acting fairly in the public interest.8 5 Tom Bingham, The Rule of Law (Penguin 2011) 6 AV Dicey, An Introduction to the Study of the Law of the Constitution (1885). [...] The literal ‘rank or condition’ of the person affects whether or not they are subject to the law, and this directly contradicts the long-held understanding of the Rule of Law as requiring everyone to be subject to the law. [...] The Venice Commission Checklist specifically mentions the importance of independence and autonomy in the prosecution service.25 One of the restrictions on prosecution set out in this Bill is the requirement that the consent of the Attorney General is required before instituting proceedings for an offence where the conduct took place on overseas operations more than 5 years ago. [...] Whether it is a natural disaster, a medical emergency like coronavirus, a war, or armed conflict falling short of war: a proper consideration of the range of the facts should always include derogation as an option if the nature of the public emergency is such that, in the words of Article 15 ECHR, it “threatens the life of the nation”.