Northern Ireland Veterans: Prosecution

David Smith Excerpts

Monday 14th July 2025 Westminster Hall

[Sir Julian Lewis (New Forest East) (Con)]

I share the dismay shown by the hon. and gallant Member for North East Derbyshire (Louise Jones) and others, when decrying the fact that the legacy legislation gave—I use her own words—“immunity to terrorists”. What nobody has yet spelled out is why it gave immunity to terrorists. There is a simple answer to that: it could not give immunity to our armed forces without giving immunity to terrorists as well.

Unless hon. and right hon. Members can come up with some brand new alternative—one that defeated the scrutiny and the inventiveness of successive Governments in trying to grapple with that problem—the question they have to ask themselves is, if the price of giving immunity to our veterans is that we have to give theoretical immunity to terrorists, most of whom have had practical immunity from prosecution for many years, and hardly any of whom are ever likely to be prosecuted, is that price worth paying? We cannot have it both ways.

Something that was rightly said earlier in the debate is that people should be trying to work across party lines to come to a solution on this, and I think that I can honestly claim to have been trying to do that for rather a long time. In 2017, the Defence Committee, which I was then chairing, published a report entitled “Investigations into Fatalities in Northern Ireland involving British Military Personnel”—HC 1064, if anyone is interested. The purpose of that report was to examine in great detail what the legal options were to enable the Government of the day to protect our veterans.

That report was published in April 2017 but, prior to that, on 7 March, we had a hearing—of which I have made the Secretary of State and the Veterans Minister aware—in which no fewer than four top professors of law took part, with a variety of views, preferences and personal attitudes towards what had happened in Northern Ireland and so forth. We were not asking them whether they approved of amnesties; we were asking them what was and was not legally possible. What they told us was this, and I am quite disappointed that no one has uttered these words, as far as I can tell, in the entire debate: it is possible to bring in a statute of limitation, and the requirement by law that something being investigated need not lead to somebody being prosecuted. Professor Philippe Sands, someone not unknown to the Government, stated in that hearing:

“The obligation to investigate is not an obligation to prosecute. It is not an obligation to take any particular steps. It is simply an obligation to find out the facts of what has happened, and ascertain.”

What was made clear in that discussion with the four professors of law was that if a Government were not to find themselves guilty of behaving with impunity, a statute of limitation had to apply to everyone. That is where people get upset, because the people who support our armed forces do not want it to apply to the terrorists, and the people from the republican movement do not want it to apply to our armed forces. But the fact is that if we are to protect anyone from prosecution in these circumstances, we have to protect everyone. Someone who just focuses on the group of which they disapprove being protected is ducking the hard choice that we have to face.

Someone mentioned trying to follow the model of Nelson Mandela. That is a very good point, and it is precisely what the legislation was intended to do. We satisfied ourselves that a truth recovery process, coupled with a statute of limitation—in other words, immunity—for people who gave their evidence to the truth recovery process, similar to what Mandela did in South Africa, was a way in which this problem could be laid to rest. When the Government say that they plan to give our soldiers every support, it sounds to me that they accept the fact that cases are going to be brought, and they are going to try and support the soldiers. But the punishment is the process. It is true that probably hardly anyone will end up going through the process to the end.

Let me insert something else that I referred to in an earlier intervention: people on both sides of the debate say we must not equate this and that, and I certainly do not equate soldiers with terrorists morally, but in applying the law, the law has to be equal for everybody. In fact, that has already been recognised in the Northern Ireland (Sentences) Act 1998, which limits the time that anybody can serve in jail, even for the most heinous murders, to two years. That is the only time someone can serve in jail. There may be people who have had relatives murdered who will derive great satisfaction from the fact that, after all this time, the murderer will go to jail for such a short period. But the reality is that the punishment does not fit the crime, and at first some of us thought that this was just a free pass for the IRA. I will not name the Minister concerned, but I and someone from the Labour Benches with a strong service background, who is now a Minister, went to meet the Sinn Féin MPs in Parliament—because they do have a presence here, even though they do not come to the Chamber. They said that they believed that the two-year limit applied to the soldiers as well as to their own allies. We looked into it and checked it with Ministers, and that was found to be correct. The fact is that we are already compromising. We are already treating both groups the same.

[David Smith (North Northumberland) (Lab)]

Will the right hon. Member give way?

[Sir Julian Lewis]

I was about to finish, but I will give way.

[David Smith]

I have to declare, having set up another peacemaking programme in Northern Ireland myself and done a master’s degree in reconciliation studies, that the legacy Act was very much not a South African-style truth and reconciliation commission. The right hon. Member is talking about the equating of terrorists on one hand and our armed forces on the other; I simply ask, what would he say to victims on how they could pursue justice under the legacy Act as was?

[Sir Julian Lewis]

When we are talking about victims of terrorists, I would ask, first of all, how likely is it that terrorists who have not been prosecuted all these years are going to be prosecuted in the future? Secondly, how do people think the victims felt in South Africa when a line was drawn for the sake of enabling the society to move forward?

What the legacy Act did was the least worst option. As we have heard, the reality is that there is no obligation to act on the finding of incompatibility with the ECHR. The Joint Committee on Human Rights published a report entitled “Proposal for a Draft Northern Ireland Troubles (Legacy and Reconciliation) Act 2023 (Remedial) Order 2024”, which states in paragraph 20:

“It is a discretionary remedy, meaning the courts do not have to issue such a declaration”—

of incompatibility with the ECHR—

“when they find a provision to be incompatible with Convention rights. A declaration of incompatibility has no legal effect and does not affect the ongoing validity of the incompatible legislation. It is merely a tool by which the courts can draw attention to an incompatibility; it is then for the Government and Parliament to decide what action, if any, to take.”

Indeed, section 4 of the Human Rights Act 1998 states that a declaration of incompatibility

“does not affect the validity, continuing operation or enforcement of the provision in respect of which it is given; and…is not binding on the parties to the proceedings in which it is made.”

I accept that there are other legal problems, but the impression that I get from the Secretary of State, whom I have known for many years and much admire, is that he has set his face against this route of a statute of limitation, coupled with a truth recovery process, and is not really listening. That is why we are not fighting to keep in place the one thing that could give protection to our Northern Ireland military veterans.