Iraq Historic Allegations Team

Albert Owen Excerpts

Wednesday 27th January 2016 Westminster Hall

[Richard Benyon (Newbury) (Con)]

I beg to move,

That this House has considered the Iraq Historic Allegations Team.

[Albert Owen (in the Chair)]

Because of time factors, if the Member who secured the debate takes 10 minutes, all the seven Back Benchers, including Mr Stewart, who have indicated that they want to speak will have four minutes before I bring in the Scottish National party and Labour party spokespersons for five minutes each, and the Minister will have 10 minutes to respond.

[Richard Benyon]

Thank you, Mr Owen, for overseeing our proceedings today. I am grateful to the Minister for being in her place and to so many colleagues for showing so much interest in this important matter.

I have a view of our armed forces that is similar to my view of other public services. Just as with the NHS and the police, I revere the people who work for those services for being the best at what they do and for showing exceptional courage and professionalism. I also accept that the armed forces, like other public servants, sometimes fail. In wanting them to remain the best armed forces in the world, I want there to be a proper sanctioned system, clearly understood by all ranks, to act as a deterrent against those who might break the rules of law. Here I admit a prejudice. As somebody who has served on operations and saw men under my command have their self-control tested to the extreme, I constantly wonder how young men, often with little education, can show such intelligent restraint at times of great provocation. I am only talking about Northern Ireland.

This year sees the 25th anniversary of the first Gulf war. Hundreds of thousands of young men and women have seen more combat in the quarter century since than in any period since the Korean war. To mark it, Help for Heroes, in conjunction with King’s College London, has produced an in-depth report that shows that roughly between 60,000 and 70,000 regular veterans and around 20,000 reservists will need our support in the coming years as they face the effects of combat. Those are the people I will talk about today and they should be our absolute priority.

I secured this debate because something has happened to some of our veterans in recent years that I think needs the urgent attention of Government. Some call it “lawfare”. It is having a profound effect on the morale of our armed forces and on how we will be able to fight wars in the future.

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[Richard Benyon]

The hon. Gentleman is right. I support the plea by my hon. Friend the Member for Aldershot (Sir Gerald Howarth) that incidents such as that of the arrest of Lance Corporal J of the Paras under caution should cease. Society wants a line drawn under such things. We seem to have moved too far towards favouring the actions of our enemies and we do not seem mindful enough of those to whom we owe a great debt.

The recommendations I have just outlined are clearly set out in the report of my hon. Friend the Member for Tonbridge and Malling. It makes it clear that we are not only talking about alleged victims of war crimes, excessive violence in combat or the mistreatment of prisoners. The definition of “lawfare” extends to the ability of the courts to judge the actions of commanders—decisions often taken in the heat of battle and then judged years later by people for whom such circumstances are alien and with the mantle of hindsight.

I go back to my own experience. I got to know well a 19-year-old soldier who, in a tense situation, shot and killed someone contrary to the so-called “yellow card” rules for opening fire. He was convicted for murder. The case has haunted me for 34 years. My worry is that the legal imperialism we have seen in recent years and the existence of organisations such as IHAT will put a dangerous caution in the minds of the sniper of the future. Rather than taking a life to save many, caution prompted by a fear of legal implications might, to quote my right hon. Friend the Member for Mid Sussex,

“put a splint around his trigger finger”.

The analogy extends into every area of war, involving everyone from the most junior soldier just out of training to the most gnarled veteran of a quarter century of expeditionary warfare. The Apache pilot, the mortar platoon commander and the frontline rifleman all need to be governed by the rule of law—but which law? That is the matter that the Minister and the Government must tackle with haste. However despicable we might think the actions of certain lawyers are, they are only responding to circumstances created by Governments past and present. My argument is that the rules we have created put our servicemen and women in greater danger in future. That cannot be right.

[Albert Owen (in the Chair)]

Given the length of the last speech, the remaining speakers have three minutes each.

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[Albert Owen (in the Chair)]

Order.

[Victoria Prentis (Banbury) (Con)]

I thank my hon. Friend the Member for Newbury (Richard Benyon) for his kind words and for calling for the debate. I will try to reduce my speech in so far as I can, but these matters did concern me in my working life for many years. I was in charge of the MOD’s litigation team in the Treasury Solicitor’s Department when the claims started flooding in in 2010. We faced a tsunami of litigation. I am not going to talk about individual cases, but I will give some recommendations from my experience.

First, IHAT was the least bad option available. The civil courts are not the place for criminal investigations to take place. Some of the claims made were very serious and needed to be investigated. IHAT is independent but secure. It is staffed by excellent officers who can investigate criminal allegations. Unlike the Baha Mousa inquiry, for example, they can refer cases to the Service Prosecuting Authority. Given where we are at the moment, IHAT should be encouraged to press on, but we should find new ways to deal with such issues in any future conflict.

Secondly, lawyers should not act without real clients with whom they are in touch and from whom they can take instructions. [Hon. Members: “Hear, hear!”] If, for example, offers of settlement are made, it is essential that a lawyer can get in touch with their client immediately; anything less makes litigation impossible.

Thirdly, access by IHAT officers to the Iraqi complainant should have been provided with speed, but it was not. I can see no explanation for that at all. There is no need, nor is it usual in police investigations, for those who complain of a crime to be represented by a lawyer from the other side of the world.

Fourthly, our disclosure rules should not be used to pervert the course of litigation and push the Ministry of Defence into a position where it feels it cannot defend itself or its soldiers. Fifthly, I support scrutiny of whether legal aid should be available to non-UK nationals bringing action against the Government. That money, in my view, would be much better spent on rebuilding Iraq than on lawyers based in the UK.

Sixthly, I think the UK should derogate from the European convention on human rights—I am certainly no anti-European—whenever we deploy soldiers abroad. The authors of the convention, who were writing at a time when the horror of the holocaust and the battlefield was still fresh, intended international humanitarian law to apply to soldiers. International humanitarian law and the law of armed conflict is robust law, designed for that very purpose; the ECHR is not.

In conclusion, we are not dealing in the main with the fog of the battlefield, but rather with the confusion of detention and interrogation. In Iraq, solders were detaining men who minutes before might have been shooting at them or killing their friends or who were believed to have had information that might have helped us to prevent further attacks on our troops. They were usually not in custody suites, offices or cells, and time for gathering information was perilously short. It was hot—

[Albert Owen (in the Chair)]

Order.

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[Steven Paterson]

I will resist getting into party politics. This is a serious case and I do not think that the hon. Gentleman made his point very well there—[Interruption.]

[Albert Owen (in the Chair)]

Order.

[Steven Paterson]

Time is now against me, but to address the hon. Gentleman’s point, I hope that we all accept the need to uphold standards of human rights. That should be the case across the world, wherever we send our armed forces. Our armed forces have our support and gratitude for the difficult work that they do on our behalf in defending not only us but our values. That means that our armed forces must always live by and espouse the same values that they defend with such distinction.

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[Penny Mordaunt]

My hon. Friend is right, and he knows what he is talking about.

When the courts entertain claims against our armed forces of the likes of an insurgent bomb-maker suing us for not shooting him in a fire fight, but instead taking him prisoner and holding him until we could guarantee he would not face mistreatment in the local justice system, it is not just our armed forces who suffer the strain on them and the corrupting effect on their behaviour in the field; the cause of human rights suffers too. Today, when faced with the likes of Leigh Day and PIL, we need to wrap our service personnel in more than just body armour when we send them out to defend freedom.

Shortly the National Security Council will meet to decide on a number of options to address all the concerns that hon. Members have expressed this afternoon. Over the last eight months, extensive work has been going on in the MOD and the MOJ on these issues. Hon Members have mentioned some of the options that may be brought forward, and there are others.

Specifically with regard to spurious litigation being brought against our service personnel and the conduct of legal firms, the Prime Minister has announced that the Under-Secretary of State for Justice, my hon. Friend the Member for Esher and Walton (Mr Raab), and I will chair a working group to tackle every aspect of that, including conditional fee arrangements, legal aid rules and disciplinary sanctions against lawyers who are abusing the system or attempting to pervert the course of justice.

Against that backdrop, I understand that the work of IHAT has been tarred with the same brush. Hon. Members have spoken about why it was set up. It was to ensure that we have a domestic process as opposed to an international one. I want to give an insight into some of the cases, because they are illuminating.

In case No. 377, it was alleged that a passenger in a car was shot by an

“hysterical British soldier in a tank.”

That IHAT investigation ascertained that PIL had submitted the allegation in October 2014, despite Danish armed forces accepting liability for the incident and paying compensation in 2003.

In case No. 123, it was alleged that a 13-year-old girl had been killed when she picked up part of a UK cluster bomb that had failed to detonate. The IHAT investigation established that a 13-year-old boy had been killed, but was unable to ascertain whether Iraqi or UK munitions were responsible. PIL challenged the MOD’s decision not to refer it to the IFI—Iraq fatality investigations. The MOD defended the challenge on the basis of that information. Shortly before the hearing, PIL disclosed a witness statement by the boy’s father, made before the IHAT investigation, in which he said that the boy had been killed while in the vicinity of an Iraqi mobile missile launcher preparing to fire missiles into Kuwait that was destroyed by a coalition helicopter. There are many other cases that I could mention. It was concluded, after thorough investigation, that UK service personnel had acted in self-defence, in the defence of others, and lawfully.

IHAT enables us to meet our obligations to investigate serious wrongdoing, and its work is exonerating those wrongly accused and rejecting bogus allegations. I would add that the sniper case that my hon. Friend the Member for Newbury mentioned is not an IHAT case. Its investigators—a mix of service personnel, police officers and legal experts—are doing a public service, and I pay tribute to them. They feel their responsibilities keenly. Those investigators did not set up IHAT; we did. That was done not by anyone in this Chamber today, but by a previous Government, and for sound legal and policy reasons—there should be a domestic system of accountability, because without that there would be an international one. I hope that I have set the record straight on that. However, some questions remain for us, the politicians.

Does the existence of IHAT invite such claims? Were we not funding it, would fewer cases be brought? Why are so many cases brought and why are they so poorly researched, lengthening the investigation process? How can we speed that up? What support is given to our armed forces during the process? The work of IHAT is independent of the MOD, and we would not interfere with its investigations or work, but those are genuine questions to look at. It is right that we look at further ways of speeding up the process without compromising the quality of its output or its independence.

I can reassure hon. Members that we do all we can to support our armed forces through such investigations, and that support is also embedded in the practices of IHAT. It does give notice of investigations, and hon. Members must flag it up if they have heard of instances in which that has not been the case. Support that the MOD routinely provides to service personnel includes the funding of legal costs and, where appropriate, the funding of judicial reviews, as well as pastoral support. We fund medical assessments and applications to excuse from giving evidence veterans and serving personnel who are not medically fit to do so. Indeed, some in the judiciary have criticised the MOD for providing the level of support that we do provide. Those obligations remain, whatever the theatre in which the actions took place, whether it is Iraq, Afghanistan, Northern Ireland or elsewhere, but we recognise the cost of all this to our servicemen and women and to the public purse.

The al-Sweady case, in which our armed forces were exonerated and which resulted in Leigh Day being referred to the Solicitors Disciplinary Tribunal, cost the MOD and the British taxpayer £31 million to stage—£31 million, I would argue, that would be better spent on equipment and support for our armed forces. The status quo is financially unsustainable and morally unjustifiable. To put this right falls to us in this place, and we must all be resolved to do so. This issue and the solutions that we will bring forward are complex, but the objective is simple: we must protect human rights and we must protect those who defend them—our armed forces.

[Albert Owen (in the Chair)]

We have run out of time, but I will give the hon. Member for Newbury (Richard Benyon) one minute. I apologise for the time restraints.