Rights‐Restricting Rhetoric: The Overseas Operations (Service Personnel and Veterans) Act 2021
| Published date | 01 March 2022 |
| Author | Conall Mallory |
| Date | 01 March 2022 |
| DOI | http://doi.org/10.1111/1468-2230.12718 |
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Modern Law Review
DOI:10.1111/1468-2230.12718
LEGISLATION
Rights-Restricting Rhetoric: The Overseas Operations
(Service Personnel and Veterans) Act 2021
Conall Mallory∗
This article considers the role of rhetoric in British political discour se with a particular focus on
how it aids the construction of legislation that restricts human rights. Using the parliamentary
debates concerning the Overseas Operations (Service Personnel and Veterans) Act 2021 as an
extensive example,it demonstrates how the rhetorical theatrics of legislating in the Westminster
parliament play a fundamental role in justifying restrictions on rights to the public. Rhetoric
fulls three functions in this process: persuasion of the need for r ights-restricting legislation;
obstruction of scrutiny of such plans, and the perpetuation of national myths and tropes upon
which such policies are debated. Arguing that such rhetorical functions are immovable from
British political discourse, the article concludes by proposing how they can best be diluted.
INTRODUCTION
The introduction of the Overseas Operations (Service Personnel and Veterans)
Bill (OOB) in March 2020 caused a signicant degree of controversy.Drafted
ostensibly ‘to provide greater certainty for Ser vice personnel and veterans’, the
Bill proposed to introduce a ‘triple-lock’ to protect soldiers and veterans from
what the government framed as ‘vexatious’ litigation.1Central to this was a pre-
sumption against the prosecution of soldiers for oences committed overseas
after ve years had elapsed from the time of the alleged incident. This pre-
sumption was controversially applicable to all crimes apart from sexual oences,
meaning that – in direct conict with a swathe of the United Kingdom’s human
rights and international law obligations – the exclusion did not extend to the
oences of torture, crimes against humanity, war crimes or genocide. The ab-
sence of these oences was then subject to a series of amendments in the Lords
and, following a period of ping-pong with the Commons, they were eventually
∗Senior Lecturer in Law, Newcastle University.An earlier version of this paper was presented at the
annual conference of the Society of Legal Scholars at Durham University in September 2021. My
thanks go to the attendees at this event for their many useful remarks.My thanks also go to Colin
Murray,Sean Molloy,Adam Ramshaw,Bethany Shiner and Ben Farrand for their comments on earlier
drafts of the work. Finally, my sincere gratitude goes to the anonymous reviewers at the MLR for
their helpful suggestions. Any errors remain my own. Except where otherwise stated, all URLs last
accessed 15 November 2021.
1 Overseas Operations (Service Personnel and Veterans) Bill Explanatory Notes Bill 117-EN (18
March 2020) 3.
© 2022 The Authors.The Moder n Law Review published byJohn Wiley & Sons Ltd on behalf of Modern Law Review Limited.
(2022) 85(2) MLR 461–487
This is an open access article under the terms of the Creative Commons Attribution-NonCommercial License,which per mits use,distri-
bution and reproduction in anymedium, provided the original work is properly cited and is not used for commercial purposes.
Rights-Restricting Rhetoric
added to the schedule of excluded crimes before the enactment of the Overseas
Operations (Service Personnel and Veterans) Act 2021 (OOA 2021).2
At one level then, there is a version of this episode which represents the
healthy workings of parliamentary mechanisms in confronting nascent rights
exceptionalism and preventing the passing of a Bill with highly dubious human
rights credentials.3Against the backdrop of a huge government majority in
the House of Commons, the scrutiny the Bill received in the Lords and in a
particularly scathing Joint Committee on Human Rights report,4proved to be
the catalyst for necessary amendments.5The celebrated inuence of activists,
human rights and veterans’ groups in disrupting the more malign aspects of the
Bill is also demonstrative of a healthy and engaged civic society.6In the battle
between majoritarian government rule and institutional safeguards, the latter
appeared to emerge the victor. This version of events presents the treatment
of the Bill as a triumph for the structural features of parliamentary scrutiny
mechanisms. Yet there is another account to be given, one which looks away
from the formal mechanisms and into the content of parliamentary debate.
In this piece I argue that the OOA 2021 debates are demonstrative of how
the rhetorical discourse of contemporary Br itish parliamentary politics aids the
construction of rights-restricting leg islation. The ways in which this discourse
facilitates the construction of such policies is pervasive and thus relates to both
how proponents of rights-limiting legislation use rhetoric to make their case,
as well as how opponents and rights-advocates frame their opposition. More-
over, it spans both Houses of Parliament meaning that despite the Lords having
a justiably celebrated role in scrutinising legislation, the nature of discourse
in the second chamber can also be problematic from the perspective of hu-
man r ights. To appreciate how rhetor ic aids the development and execution of
these policies, it is rst necessary to understand that its aim is not to convince
other politicians of the merits or demerits of a par ticular agenda. The party-
political structures which dominate contemporary Westminster politics make
such deliberative rhetoric,where parliamentarians can be moved and minds can
be changed, unrealistic. Instead, the rhetoric is framed in such a way as to either
facilitate the public’s acceptance of rights restriction, or to convey to the public
the problems with such policies.
This rights-centric consideration remains necessary in the United King-
dom, where political leaders continue to profess the state’s commitment to
human rights.7Despite the contemporary r ights backlash, both globally and
2 Torture, crimes against humanity and genocide were all included in response to earlier amend-
ments from the Lords.The Bill was only updated to include war crimes in the nal days before
it was passed.
3 For discussion, see M. Hunt, H. Hooper and P.Yowell (eds), Parliaments and Human Rights: Re-
dressing the Democratic Decit (Oxford:Har t, 2015).
4JCHR,Ninth Report: Legislative Scrutiny: Overseas Operations (Service Personnel and Veterans) Bill
HC 665 (2020).
5 Boris Johnson’s ConservativeGovernment held an 80-seat major ity in the House of Commons
when the Overseas Operations Bill was introduced on 18 March 2020.
6 Lord Robertson celebrated the ‘tenacious campaign to draw public and parliamentary attention
to its manifest defects’, HL Deb vol 811 col 2348 28 April 2021 (Lord Robertson).
2020 at https://www.telegraph.co.uk/politics/2020/12/07/human-rights-act-not-inf allible/;
462 © 2022 The Authors.The Moder n Law Review published byJohn Wiley & Sons Ltd on behalf of Modern Law Review Limited.
(2022) 85(2) MLR 461–487
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