Immunity for Soldiers

Mark Francois Excerpts

Monday 20th May 2019 Westminster Hall

[Richard Drax (South Dorset) (Con)]

I, too, pay tribute to my hon. Friend the Member for Southport (Damien Moore) for securing this debate and for his excellent speech introducing it. I also pay tribute to all those who have spoken. It is humbling to be surrounded by so many hon. and gallant Gentlemen who served in Northern Ireland or elsewhere.

To introduce briefly where I fit in, I did three tours of Northern Ireland. My first was in December 1978. I remember the sergeant-major at Sandhurst saying to me as I left, “Sir, you have time to say ‘Happy Christmas’ to your parents. Then get your arse over to Northern Ireland.” I said, “Right. Thank you very much indeed; that’s my Christmas gone.”

I went over on the ferry with a great friend of mine. The difference between England and Northern Ireland was absolutely marked at that time. I remember getting off the ship, on which we were treated as normal, free civilians—we enjoyed a drink and a chit-chat—and getting into an armed vehicle, which was affectionately known as a pig.

We then drove to our base in McCrory Park, just off Falls Road, where I spent the first six months of my three tours. As we drove to McCrory Park, I simply could not believe that we were in the United Kingdom. It took a huge amount of appreciation for it to sink in that our country was that divided by hatred and violence, as I would soon witness.

On 20 July 1982—after my tour—Lieutenant Anthony Daly was leading the changing of the guard with his men; he was going from Hyde Park barracks to his duty when the IRA detonated a nail bomb in Hyde Park. Another bomb was laid at Regent’s Park that afternoon, which killed members of the Green Jackets, who were performing there. I am sure that we all remember the ghastly pictures of horses and men splayed across the road. Today, there is a commemorative stone for Anthony Daly on the spot where it took place. John Downey, a convicted IRA killer, got off because of a letter of amnesty.

We have heard many examples from hon. Members of how the IRA seems to get away with the atrocious deeds it did, but members of our armed forces who go out to save lives—this point was made by my right hon. Friend the Member for Newbury (Richard Benyon), among others, and I wish to reiterate it—

[Mr Mark Francois (Rayleigh and Wickford) (Con)]

On John Downey, the alleged Hyde Park bomber, is it not correct that when he produced his so-called “comfort letter”, the judge abandoned the trial? The Government continue to maintain the fantasy that such letters have no legal power or strength, yet a judge in charge of a murder trial abandoned it when one was presented. Does that not drive a coach and horses through the Government’s case?

[Richard Drax]

It drives a tank through the Government’s case. My right hon. Friend speaks with his characteristic verve and clarity. He is absolutely right: so it does.

To speak personally, my view over many years—I am 61; I served nine years in the Army, and I have been here for nine years—has been that politicians generally, although there are noble exceptions, all of whom are in the Chamber today, simply do not understand the armed services. They just do not get it. I have a huge amount of respect for the Minister, whom I know well; this comment or any I make are not aimed at him but at all Governments, as my right hon. Friend the Member for Chingford and Woodford Green (Mr Duncan Smith) said. What is the first thing that happens when a Government come to power and are short of power? They cut the armed services. That is intentional madness. The armed services are an insurance policy that require money to be invested in them. We hope that we do not have to use them but, in places such as Northern Ireland, we do.

If I recall this correctly, we had about 35,000 troops in Northern Ireland at the height of the troubles. We would be pushed to mount an operation on a similar scale today. In fact, as has been said, it would probably be impossible. My message to the Government therefore concerns all those things we say about our armed forces. We repeatedly hear from politicians how they respect the armed forces covenant and all such things, in the Chamber and outside, but when it comes to the crunch, our armed forces are let down.

I will touch briefly on Royal Marine Al Blackman, whom I and many others managed to get out of jail after he had served only half his time. This example is similar to one given earlier. None of the circumstances in which that man was forced to operate—it was in the most appalling conditions in Afghanistan—was taken into account. It is easy for politicians for who have no experience of operational service to sit in an armchair with their gin and tonic and say, “I condemn that man or woman for what they did.” They fail to understand the total picture in which our brave men and women all too often serve.

Mention has been made of the yellow card. I, too, learned the yellow card. I recall—I hope that I have my old memory working—that one of our main concerns was the vehicle checkpoint. We were told, and this often happened, that young boys would challenge Army checkpoints. Young kids and teenagers, not related in any way to terrorism, would try to drive through our checkpoints for a laugh. We discussed that on many occasions—“How do we deal with that?” A car is coming at us at 50, 60 or 70 mph, we have one, two or three seconds to react, and we have a gun in our hands. We think, “Is this a terrorist? Is this a young boy fuelled by drink? Who is this guy?”, then bang, the car goes into the checkpoint, possibly killing or seriously injuring one of our soldiers or a member of the civilian population, and the car drives away. Are we allowed to shoot the person in that car then? The answer we all came to was no, because that person is no longer an immediate danger to us or to anyone else. Had someone been shot in that car, there would have been a kerfuffle, a court case, accusations of murder and all the rest of it.

This point about restraint has been made, but I make it again: those I served with, and the many others I served alongside, all showed restraint, in particular in riots or very dangerous areas. A soldier’s instinct, when going to someone in trouble, is to help; it is not to kill, or beat up. A number of times I saw my guardsmen go to the aid of those on both sides of the community, and as we built up a relationship, the number of cups of tea offered often increased a little, because most Irish people are decent. A few rotten apples, sadly, spoil the barrel.

I absolutely agree with everything that has been said by all right hon., hon. and gallant Friends so far. I urge the Government to stop doing what we do best, which is talking; that is over now. We cannot go on betraying our brave men and women; we tell them that they are brave, but when they come home, we sell them straight into a court, throwing them to the mercy of lawyers et al. That is not on. Finally, justice delayed is no justice at all.

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[James Heappey]

I very much agree. My hon. Friend is right that the political angle to this is most unfortunate. I will come to that later in my remarks.

I am deeply concerned by any suggestion of equivalence between the actions that I and so many other service personnel have taken on operations and the actions taken by terrorists out to take life illegally. There is no equivalence. In the debate on the urgent question on Thursday morning, the Government deployed a disappointing line, which seemed to suggest that comfort letters would not endure and, if they did not, all would therefore be open to prosecution. Although that corrects an imbalance, by definition it creates an equivalence, in which we say, “At least both sides can be investigated and prosecuted.” That is simply not acceptable: there is no equivalence.

[Mr Francois]

David Griffin, aged 78, is a Chelsea pensioner. In 1972, he killed an IRA gunman who was about to assassinate one of his comrades. He was investigated at the time and exonerated. Forty-six or 47 years later, he is being investigated again by the PSNI, who will not tell him his fate. He was an Irish Catholic born in Dublin—

[Mr Peter Bone (in the Chair)]

Order. I am sorry, but if this is sub judice we should not be pursuing it.

[Mr Francois]

It is not sub judice. I am sorry, Mr Bone: I completely understand your intervention, but this is not before a court and the case is in the public domain. Very quickly, David Griffin has no comfort letter—he has no comfort of any kind and is in utter limbo, although he is a Chelsea pensioner. He is very worried. Why do our Government allow this to happen?

[James Heappey]

My right hon. Friend is absolutely right. There is no equivalence whatever. Whether the other side can now be investigated again or not, it is simply unreasonable, wrong, immoral and a breakdown of our covenant with our armed forces that we allow the investigation of those who have served to continue.

My hon. and gallant Friend the Member for Beckenham (Bob Stewart) gave an amazing speech, in which he reflected that there was a time when his blokes thought that he had thrown them under the bus because they were required to go to court. It was clear from his speech the pain that he felt having to look his soldiers in the eye and break that news to them. I suspect that if those soldiers were watching you, Colonel, this afternoon they would have been proud to see someone take the responsibilities of command so seriously years after their watch is done. I found that very powerful.

All of us who have had the great privilege of carrying a commission in Her Majesty’s armed forces, and to have had command of soldiers, sailors and airmen, will relate strongly to the pain that my hon. and gallant Friend so clearly felt. Even now, in another career many years later, we feel we are letting our riflemen, guardsmen and private soldiers down. That is what motivates us all to be here.

The first time I was involved in any such process was in Kabul in 2005, about a year after I had been commissioned. We had been involved in the use of lethal force following a double vehicle-borne suicide bombing. Throughout the afternoon and evening that followed, and overnight as we stood on the perimeter, we went back through everything we did and thought tactically whether we did the right thing. When we got in the next morning, having been relieved, and the first thing we got was a date with the Royal Military Police’s special investigations branch, I was pretty close to throwing punches. But I understand that is a necessary part of applying lethal force on the battlefield. We are trained to live and operate by a higher standard, and we should have nothing to fear when the investigation starts immediately on the back of the application of force like that.

Two years later in Basra, and two years after that in Sangin, that process was commonplace—in Sangin, as a battalion adjutant in the most contested Herrick tour and battle space, I was responsible for an awful lot of initial investigation processes. The immediate debrief could not be accurate, because adrenalin was still coursing through the veins of the riflemen who had been involved. They were emotional because, very often, their friends had lost their legs or had been killed in the very same mission. There was confusion about what had happened because the fog of war was all around them. As they relayed their individual testimonies about what had happened that afternoon, night or morning, often that did not match up with the testimony of the rifleman who had stood immediately next to them, fighting the same contact.

In the process of that investigation, the company second-in-command drafts a report and comes up to the adjutant, who has a look at it; he then goes to the brigade and the legal adviser looks at it, and the special investigations branch has a look at it. Meanwhile, that rifleman would have been deployed on three, four, five, six or seven more patrols in the following seven days, in which there would have been more kinetic activity in which they would have applied lethal force, and on the back of which there would have been more reports by the company’s second-in-command, coming up to the adjutant and so on and so forth. Very quickly, all the details of those missions start to mesh into one—so much so that we had riflemen go to the coroner’s hearings six or nine months or a year after a tour and not recognise the contemporary report of what happened that night when they applied lethal force.

I make that point because days or a year after, those servicemen cannot remember exactly what happened—it is a natural part of how we deal with our mental health to seek to delete and overwrite. How on earth can we turn round to them decades later and replay to them accurate reports made at the time as part of the evidence against, and ask them to account for themselves to try to establish their innocence once again? Some of us have had that moment when a threat is perceived—in a split second we have to decide whether to apply lethal force because our life or the life of another is in danger.

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[Carol Monaghan (Glasgow North West) (SNP)]

This has been an extremely emotional debate in which many hon. and gallant Members have spoken passionately about their personal experience in Northern Ireland. We expect the highest standards from our armed forces, and that requires them to operate within the rule of law, in accordance with the rules of engagement. Military operations in Northern Ireland were highly stressful, so a high level of training was central to ensuring that discipline was maintained.

Many Members have spoken about the restraint they had to exercise during their service in Northern Ireland, and they described their exemplary behaviour. The actions of a few in the armed forces during Operation Banner, which, in the case of the Bloody Sunday killings, Prime Minister David Cameron described as “unjustified and unjustifiable”, let down their colleagues and made the overall task more difficult.

We have heard many examples of how stressful the process has been for the individuals and families involved. The hon. Members for Belfast East (Gavin Robinson), and for Plymouth, Sutton and Devonport (Luke Pollard), asked what sort of new evidence would be considered appropriate when looking at investigations. We need that important question answered. Many families have been left in limbo while investigations drag on, as have members or former members of the armed forces.

The legacy investigation branch of the PSNI is reviewing all deaths attributed to the security situation in Northern Ireland between 1968 and the Belfast agreement in 1998. However, it is not only deaths attributed to security personnel that are being investigated. We therefore need to be careful about talk of soldiers being prosecuted or being easy targets for prosecution, and terrorists getting away scot-free, because that is simply not true. Any decision by the legacy investigation branch to prosecute is referred to the Director of Public Prosecutions for Northern Ireland. That is an independent process, without UK Government involvement.

As I said, we must be careful about the language we use. In March, the Northern Ireland Secretary was forced to issue an apology to the House for what she described as her “deeply insensitive” comments on state killings in Northern Ireland. She referred to her “inaccurate” comments on the actions of soldiers during the troubles. In her statement to the House, she declared:

“What I said was wrong. It was deeply insensitive to the families who lost loved ones in incidents involving the security forces.”

She added that any evidence of wrongdoing should be

“pursued without fear or favour, whoever the perpetrators might be.”—[Official Report, 11 March 2019; Vol. 656, c. 74.]

That is crucial to the ongoing peace process. If we do not want to lose sight of what we have achieved in Northern Ireland and what we continue to want to achieve, we must be sensitive to the victims on both sides.

[Mr Francois]

Will the hon. Lady give way?

[Carol Monaghan]

No, I will not. We also must have confidence in the ability of the police and the judiciary in Northern Ireland to serve the people.

[Mr Francois]

Will the hon. Lady give way?

[Carol Monaghan]

I have already said that I will not.

[Mr Francois]

Why not?

[Mr Peter Bone (in the Chair)]

Order. The hon. Member for Glasgow North West (Carol Monaghan) has every right to not give way, as the right hon. Gentleman knows. She has indicated that she does not want to give way.

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[Stephen Pound (Ealing North) (Lab)]

It is a pleasure to serve under your chairmanship, Mr Bone. I congratulate the hon. Member for Southport (Damien Moore) for bringing the debate.

It is a common truism and an error when people pay credit to debates by saying they are the most important they have heard; on this occasion, that is not an exaggeration. We have been privileged to hear some extraordinary testimony, not just from eye witnesses, but from people who have made it their business to study this awful, tragic business over many years. On the one hand, we have the ugly, unfortunate and unacceptable image of pensioners being dragged from the golf course, but on the other hand we have to look into the eyes of those whose relatives were killed. I am glad that some people mentioned the victims; it is important to mention them.

We have to ask ourselves: are we seriously saying that at no stage, at any time in the 30 years of Operation Banner, no person in British Army uniform committed murder? I think we all know that there were incidents: four soldiers were convicted of murder during that period, although in one instance, the case was then downgraded to manslaughter. All four were sentenced to life imprisonment; all four were released by the royal prerogative after fewer than five years; and all four rejoined the British Army. I have not met a single person serving or formerly serving in the armed forces who has anything but contempt for soldiers who break their oath and act outside the area that they should; that is incredibly important. We have to recognise that there are two sides. Obviously, we have sympathy for people.

In many ways the hon. Member for Witney (Robert Courts) encapsulated the heart of the problem. He implied—he may have meant to do more than that—that we should have prosecuted at the time; the problem is justice delayed. As these cases were not prosecuted at the time, we are led to the present situation. To have prosecuted at the time might have been more sensible.

The hon. Member for Southport said that over 3,000 people died during the troubles; that bears repetition. Probably the most chilling statistic I have ever heard is that more than that number have killed themselves since the Good Friday agreement. There have been over 3,000 suicides in Northern Ireland. That tells us something about the continuation of the horror that has bitten deep into the soul. When we hear the testimony of the hon. Member for Strangford (Jim Shannon)—I call him my friend—we realise how raw these emotions still are. That is why, if at all humanly possible, we have to be as dispassionate as we can be. That is not easy. We are talking about points of law, and about decisions that we take in this House that will echo down the ages, for years to come; we have to be cautious and careful in what we say.

My hon. Friend the Member for Plymouth, Sutton and Devonport (Luke Pollard) rightly referred to the chain of command, which has not been discussed overmuch. In some cases, ordinary troops—ordinary soldiers, ordinary sailors, ordinary airmen and women—were let down by the chain of command.

That brings me to the extraordinary speech of the hon. and gallant Member for Beckenham (Bob Stewart). I was privileged to be in the House on the incredible occasion when he quoted Kipling:

“it’s Tommy this, an’ Tommy that, an’ ‘Chuck him out, the brute!’

But it’s ‘Saviour of ’is country’ when the guns begin to shoot”.

I never saw active service, but from the emotion that he showed on that occasion and has shown today, I felt the real importance of the debate.

The hon. and gallant Gentleman spoke about the yellow card. There has been much discussion about the yellow card, but I think we need to have a few facts. It was amended six times between 1969 and 1972, and was never, ever intended to supersede the common law, which gives the right of self-defence. Nobody ever suggested that the yellow card was anything other than a source of guidance; it did not supersede the common law. The central point is that the law has to apply to all on every occasion.

[Mr Francois]

Will the shadow Minister give way?

[Stephen Pound]

I happily give way to the former Defence Minister.

[Mr Francois]

I am grateful. Will the hon. Gentleman remind us what colour the card was that the IRA had to abide by before opening fire on civilians or servicemen?

[Stephen Pound]

If there is one thing that has echoed round this Chamber today, it is that there is no equivalence between troops and terrorists—between people who wear uniform and people who wear balaclavas. I am sorry, but I resent the right hon. Gentleman’s point; I think that the attempt to make it demeans the quality of the debate. He was a very distinguished Defence Minister, and he speaks with good sense on many occasions, but that point was slightly unworthy of him.

The hon. Member for Belfast East (Gavin Robinson) rightly spoke about the rule of law. He mentioned something that I still find almost too agonising to think about: the on-the-run letters. I can do no better than quote Mark Durkan, formerly of this parish, who said that he felt those letters blighted the peace process

“with their penchant for side deals, pseudo-deals…shabby deals and secret deals”.—[Official Report], 26 February 2014, c. 249.]

That is recognised on this side of the House, and I hope on all sides. They are not defensible, and we would not seek to defend them today.

The right hon. Member for New Forest East (Dr Lewis) raised an extremely interesting point, to which a few others have referred: the almost unbearable tension in the mind of a 17, 18 or 19-year-old person who knows that at any minute something they do could have lethal consequences—against them, or from them. That is the point: it is just as terrifying for them to think of the damage they could do to someone as to think of the damage that that person could do to them. The point that the right hon. Gentleman made about that fear is something that only people who have been in the situation can understand, and I am grateful to have heard what he said. The hon. Member for Strangford talked about the environment of tension, and that is something we need to talk about.

The hon. Member for Plymouth, Moor View (Johnny Mercer) widened the horizons of the debate, and talked about IHAT and lawfare. I have no case to make for lawfare or those ambulance-chasing scoundrels of lawyers who somehow manage to infest the lower reaches of the legal system like foul leeches, trying to take blood from our people. I have no time for those people who came up with trumped-up cases to embarrass, and in many cases threaten and terrify, people who had served with distinction and honour. I have no time for those leeches, those bloodsuckers, those ambulance-chasing scumbags.