Armed Services: Claims

Lord Robathan Excerpts

Thursday 24th November 2016 Lords Chamber

[Lord Robathan (Con)]

My Lords, it is a delight to follow the noble and gallant Lord, with whom I studied at staff college—your Lordships will note that he had a rather more successful career than I did. I also defer to the high-price legal opinion that we have on both sides of the House and want to address this issue from the position of a practitioner, albeit a long-retired soldier, and of a politician with an interest in defence who spent three-and-a-half years in the last Parliament as a Minister in the MoD responsible for personnel.

I want first to look at the workings of military discipline in the chain of command and then briefly at the legacy in Northern Ireland, where soldiers have been pursued for political reasons. Finally, I want to see how we might improve the situation.

When I was a soldier some 30 years ago, military discipline was a great deal fiercer, but it was largely accepted by troops—everybody knew where they were, and they were all volunteers. It was not perfect; it was sometimes harsh and by 21st-century standards unjust, but it worked.

In today’s debate, I want briefly to cover the cases of Trooper Williams and Baha Mousa in Iraq. In 2004, a young man called Williams, 18 years old, found an Iraqi pushing a barrel-load of mortar bombs. He and a corporal pursued the man into a compound—they did not shoot him in the back, which they could have done—and Williams said that in a struggle, the corporal was having his pistol taken away from him by the Iraqi so he shot him. Who are we in this Chamber to dispute that story? He was charged under military law in front of his commanding officer and, with legal advice, the commanding officer dismissed the case.

However, the Adjutant-General at the time, conscious of feelings, wrote quite unacceptably in a letter—I quote it from memory—that Williams had to be charged again or it might become “a cause celebre for pressure groups”. I was quite unhappy with that when I discovered it. Kevin Williams, 18 years old, was kept in open arrest for a year and charged with murder in the civil jurisdiction—because he could not be charged a second time. When he went to the Old Bailey, the judge dismissed the case on day one.

Baha Mousa’s case was one of a disgraceful, appalling failure of discipline, but seven soldiers were charged. One was jailed for inhumane treatment and, quite rightly, the careers of several officers were ended without the need for subsequent inquiry.

In both cases, one of appalling misbehaviour, the military system had worked, however imperfectly. I put it to some of the noble and learned Lords in this Chamber that sometimes the civil jurisdiction does not work that well either. We did not need the ECHR to tell soldiers what was right and wrong, because they know—they are taught the Geneva Conventions, international humanitarian law and the law of armed conflict. The case of Sergeant Blackman is relevant, because in Afghanistan he knew exactly what he was doing and he actually said, “This is against the Geneva Convention”—although the eight years he received remains too long a sentence. However, he was tried by court martial, by military jurisdiction.

The Northern Ireland conflict ended in 1998. Many of the deaths and incidents there took place more than 40 years ago. There were 3,500 deaths, of which approximately 90% were caused by terrorist action. The other 10% were the result of police and military action in protecting the people of Northern Ireland, be they Catholic or Protestant, against terrorists—however imperfectly on occasion. One example where civil law was involved is the pitchfork murders in Fermanagh in 1972 which, as noble and learned Lords may remember, were covered up by a patrol. When that was discovered, the retired soldiers were brought to justice—quite rightly—and sent to jail. Where soldiers have been proved to have broken the law, they have been punished. I saw that myself in Northern Ireland.

However, the situation we now face in 2016 is disgraceful. For political reasons and under pressure from Sinn Fein, we now have the Legacy Investigation Branch of the PSNI, which is 70 officers strong and investigating 300 cases involving the military—which of course kept records—as its priority. Yet tenfold died because of terrorist activity. The Attorney-General for Northern Ireland ordered 56 coronial inquests and I am told that all bar one involve police or military actions. The Police Ombudsman for Northern Ireland is looking at historic complaints of police misconduct back in the Troubles. So the police and military are under the cosh yet they have always been judged by the law—often at the behest of former terrorists.

The last Secretary of State spoke in February of a “pernicious counternarrative” of the Troubles: opponents of the United Kingdom trying to rewrite them. The Stormont House talks of 2014 wanted to set up a proportionate inquiry unit, the Historical Investigations Unit, which would look at cases only where there was compelling new evidence and would have a five-year time limit to finish its work, starting with cases from the very beginning of 1969. Let me illustrate the current situation, briefly, with the case of Dennis Hutchings who, 42 years ago, shot a man dead. The Army and the public prosecutor investigated and the case was closed. The Legacy Investigation Branch of the PSNI undertook a cold case review and in 2013 decided to take no further action. The then Minister for the Armed Forces apologised to the dead man’s family—I was slightly surprised to discover that that Minister was me. Hutchings has now been charged with murder but his two comrades—his defence witnesses in the case—are dead. Is that justice? In all these theatres, we are often allowing our enemies and opponents to use our liberal values, which they oppose, against us.

The Government should fulfil their manifesto commitment, repeal the HRA and have a UK Bill of Rights—not to withdraw, as the noble Baroness said, from our moral obligations but to make things more fitting. I also back the noble and learned Lord, Lord Brown. We should reinstate something like prior immunity so that soldiers cannot sue the Crown for inadequate equipment because that is an entirely subjective judgment. Imagine the consequences of that 100 years ago with the Somme: it would have been a complete lawyer-fest. I am out of time, but I congratulate the noble and learned Lord on his excellent speech and for having this debate. I encourage Her Majesty’s Government to listen to the feelings expressed here and to take action so that our Armed Forces are effective in battle, able to act in the heat, dust and nightmare of it without worrying that lawyers in comfortable offices, be they in Strasbourg or the Strand, will later judge them to be criminals.