Armed Services: Claims

Baroness Kennedy of Shaws Excerpts

Thursday 24th November 2016 Lords Chamber

[Baroness Kennedy of The Shaws (Lab)]

My Lords, first, I thank the noble and learned Lord, Lord Hope, for encouraging caution in following the suggestion that we should withdraw from our legal obligations.

Mention has been made of the case of Baha Mousa. I know that many noble Lords in this House will have heard the name but will not be sure to whom it refers. The killing of Baha Mousa was a terrible blot on our reputation. Here was a man with a young family, found in the wrong place at the wrong time—he was a receptionist in a hotel—who was beaten to death, unfortunately, by British forces. Without the Human Rights Act, which forced the Government to hold an inquiry, there would have been no investigation, no accountability and no justice. We should remember that. The Human Rights Act places in the hands of individuals the right to petition and the power to seek justice.

I remind your Lordships that an inquiry, chaired by William Gage, found that Baha Mousa had been killed after sustaining more than 93 identifiable injuries to his body—this makes uncomfortable listening but we have to hear it so that we remember. He found that several other Iraqi men were placed in a circle and beaten sequentially, creating what the soldiers involved called a “choir”. They were hooded, forced into stress positions, made to dance and doused with toilet water—that is, water from a toilet bowl. One detainee had liquid poured over him while a soldier, pretending that it was petrol, appeared to use a lighter. These terrible abuses resulted in broken bones, damage, swelling to internal organs and post-traumatic stress disorder.

As a nation, we seek to uphold our values against those intent on destroying them. If we compromise, we lose our moral standing and betray the trust of those we seek to protect. Hypocrisy does not win wars, and neither does it win hearts and minds. Only three or four years ago I went to Iraq as an independent assessor of human rights programmes that had been established there after the withdrawal of troops. One of the things that stood us in good stead was that we, with our great respect for the rule of law, had investigated, proceeded appropriately and paid compensation appropriately in cases where we felt our Armed Forces had misbehaved. That we take those stands was a lesson to those who sought to advance the cause of human rights in Iraq.

I am currently involved in a similar sort of activity with regard to the rape of women in refugee camps, where often the rapes are conducted by peacekeeping forces, whose nations do not prosecute them. We had the moral standing in the world to be able to say, “We do prosecute”. There are independent law firms—we have an independent legal profession and judiciary, and we bring cases appropriately. Sometimes they will not be well founded, but even if that happens in a small number of cases, it is important that we are seen by the world to do this.

This whole campaign to retreat from legal obligations and our moral responsibility for wrongs committed by our military is built on a false narrative. The claim that there is an industry of vexatious claims and spurious allegations is not supported by evidence. First, I concede immediately that in all law, claims will be brought that do not withstand careful examination, and they will collapse. I accept that such claims cause horrible distress to those against whom allegations are made. We have discussed it in this House with regard to sexual allegations and other areas of crime where people face allegations, and we know about the horrible experience of the innocent who are put through that. At the same time, we know that the right route is through the law.

The military and some right-leaning think tanks have been pushing for this withdrawal from our human rights obligations, and I urge caution on this House. I quote from a letter written to the press by Reverend Nicholas Mercer, a former lieutenant-colonel in the British forces who had been a senior legal military adviser to the 1st Armoured Division during the Iraq war. He attacked the Government for inventing this orchestrated narrative account, saying that,

“the idea that the claims are largely spurious is nonsense. The Ministry of Defence has already paid out £20m in compensation to victims of abuse in Iraq. This is for a total of 326 cases, which by anyone’s reckoning is a lot of money and a shocking amount of abuse. Anyone who has been involved in litigation with the MoD knows that it will pay up only if a case is overwhelming or the ministry wants to cover something up”.

That was written by someone who was a senior person in the military but is also someone who, I suggest, is unlikely to make easy accusations about wrongdoing.

I urge this House to recognise that, as the noble and learned Lord, Lord Hope, has just said, even derogation carries with it its problems, as we saw in Northern Ireland. When some of the techniques used against Baha Mousa were tested, not only were they found to cause needless suffering but it was felt that they turned the troops into the enemies of ordinary citizens. That is what terrorists want, and it is what human rights law helps to stop.

It was suggested by the mover of this Motion, the noble and learned Lord, Lord Brown, that we should simply rely on international humanitarian law, but I am afraid that, on its own, it just does not cover the waterfront. It would not give people the access to the courts and inquiries that was possible under the Human Rights Act.

On the subject of derogation, I remind everybody that we have signed up to international conventions against torture and cruel and inhumane treatment. Certainly the majority of the cases that I know of were about the abusive treatment of people taken into custody. I quote the director of Liberty, Martha Spurrier:

“There is a dark irony in our government proposing derogation in wars of its choosing, even though many of those conflicts, like in Iraq and Afghanistan, are fought ostensibly in the name of human rights … If ministers held our troops in the high regard they claim, they would not do them the disrespect of implying they can’t abide by human rights standards. For a supposedly civilised nation, this is a pernicious and retrograde step”.

I agree with that. I want your Lordships to know that my father and grandfather—

[Viscount Younger of Leckie (Con)]

My Lords—

[Baroness Kennedy of The Shaws]

I am coming to a conclusion now. I want your Lordships to know that my father and grandfather were in the military, and my male cousins recently fought in Northern Ireland and Iraq, so I will not be told that I am not being loyal to this country or to the military when I say that respect for human rights is one of the things that makes me feel proud of our military. I want it to be held up as a banner which we abide by and which is our beacon to the world.

[Viscount Younger of Leckie]

My Lords, it would be an appropriate moment to remind the House that this is a time-limited debate. For Back-Bench speeches, Peers are reminded to conclude their remarks when the Clock reaches six minutes.

--- Later in debate ---

[Baroness Kennedy of The Shaws]

Does the noble Earl accept that in the Baha Mousa case there would have been no inquiry but for the European Convention on Human Rights? It was used to force the Government to have an inquiry, which in turn led to investigation and so on. That was the tool in the hands of the family of Baha Mousa, which enabled us to know fully what had taken place, and for us all to express the horror we are expressing today. Otherwise, could we be sure that something would have happened?

[Earl Howe]

My Lords, I will look into the sequence of events that led up to that inquiry because I am not in a position to gainsay what the noble Baroness has just pointed out. I agree that it is important that we tease out these issues.

Moving to a slightly different issue, we have taken steps to tackle improper conduct by those in the legal profession, as mentioned by the noble Lord, Lord Ramsbotham. It is only right that law firms should not be incentivised or encouraged to represent or put forward unfounded or speculative claims, and where a solicitor’s conduct falls short of expected professional standards, action should be taken to address this. Noble Lords will recall the grave concerns expressed following the publication of the al-Sweady public inquiry report. The Ministry of Defence took the unprecedented step of referring these matters to the Solicitors Regulation Authority, which investigated them thoroughly. As a result, the solicitors concerned will face disciplinary tribunal hearings in 2017.

I reassure the noble and gallant Lords, Lord Craig and Lord Richards, that we are seeking to clarify the issue commonly referred to as combat immunity—the common law doctrine that excludes civil liability for injury caused by the negligence of those engaged in the course of hostilities. The doctrine also means that members of the UK Armed Forces are under no duty of care in tort to avoid causing loss or damage to another member of the UK Armed Forces, or anyone else. It is essential, as a number of noble Lords have made clear, to ensure that this doctrine should be applied in full, and that the courts should not be called upon to adjudicate matters which should be the subject of military decision-making. It goes without saying that those who have been injured or suffered bereavement in the course of combat or hostilities have our deepest sympathies, but the uncertainty that has resulted about the circumstances in which the doctrine should be applied is a cause for concern and leaves the Ministry of Defence and the Armed Forces open to a raft of claims. More importantly, as pointed out very cogently by the noble and gallant Lord, Lord Stirrup, it potentially calls into question the professional judgment of military commanders, giving rise to the prospect of what has been called the “judicialisation” of war. We take this matter very seriously. We are considering it closely, and we expect to be in a position to announce our proposals very shortly.

The noble Lord, Lord Thomas, suggested that the combat immunity cases are essentially about procurement rather than battlefield decisions. With respect, I do not think that is quite right. I apologise again if I have misunderstood him but I believe that he suggested—