Afghanistan: Independent Inquiry

Baroness Smith of Newnham Excerpts

Tuesday 20th December 2022 Lords Chamber

[Lord Coaker (Lab)]

My Lords, His Majesty’s Opposition welcome this special inquiry under Lord Justice Haddon-Cave into alleged unlawful activity by His Majesty’s Armed Forces, and the fact that it will start in early 2023. We also welcome the fact that this work will provide full legal and pastoral support.

Can the Minister confirm at the outset that the inquiry will be given access to all the records, documents and other evidence that it needs, as well as personnel? The reputation of our Armed Forces and our Special Forces is second to none and we are rightly proud of them. However, we are also proud of the high standards of military ethics, professionalism and respect for international law that we abide by and uphold. Therefore, does the Minister agree that an inquiry such as this is essential to protect the reputation that we rightly have, and that it must not only succeed but be seen to succeed?

There are currently two ongoing judicial review cases which have informed this decision to have the independent inquiry. Can the Minister outline the relationship between these judicial reviews and the inquiry? The Minister’s Statement says that the MoD accepts that Operation Northmoor should have started earlier and that there may be further lessons to learn from the incidents, despite there being insufficient evidence for any prosecution.

The terms of reference allow the investigation to look at whether there is any credible information that any of those who died in the DDOs carried out between mid-2010 and mid-2013 were killed unlawfully. What happens if they find such information? Are prosecutions then possible concerning Operation Northmoor, despite what was said in the Statement? What has changed in the MoD since July, when the BBC’s “Panorama” reports on these allegations were immediately dismissed by the MoD as irresponsible, incorrect and jumping to unjustified conclusions? Now, just a few weeks later, we have an independent inquiry. What changed?

Can the Minister confirm that the terms of reference allow the inquiry to substantiate any allegations, as well as how the allegations were handled? Can she clarify that the inquiry’s independence is fully assured, given that it is to take place in the MoD? And can she confirm that, as this inquiry was established under the Inquiries Act 2005, it is statutory and, therefore, that Lord Justice Haddon-Cave can summon whichever witnesses he sees fit and, if necessary, compel them to attend and give evidence under oath? Can he also ask any serving military personnel to attend the inquiry, whatever their rank? Does that also apply to civil servants, and political and other personnel? In the same period that is the subject of this inquiry, Australian Special Forces were also being investigated. Have we spoken to them to see if we can learn any lessons from them?

Then there are the implications, or potential implications, of this inquiry for Acts that have been passed and Bills currently before Parliament. I will give two specific examples. Can the Minister assure us that nothing in the Overseas Operations (Service Personnel and Veterans) Act will prevent or hinder the investigations of this inquiry? Of course, we are all opposed to repetitive, vexatious, historic claims, but some clarification and reassurance is needed here.

Furthermore, can the Minister tell us whether the inclusion of Clause 28 in the National Security Bill has anything to do with this inquiry? In other words, is the proposed legislative change in this Bill a consequence of what has or has not happened? Clause 28 of the National Security Bill amends Schedule 4 to the Serious Crime Act 2007 to provide that extraterritorial application of certain offences of assisting or encouraging the commission of an offence overseas does not apply if the behaviour was necessary for the proper exercise of any function of the intelligence services or Armed Forces.

Section 50 of the Serious Crime Act already provides a defence of acting reasonably where the defendant believed certain circumstances to exist and the belief was reasonable. The House of Commons Library states:

“The provision … appears to be intended to extend immunity from criminal prosecution to actions which could not be proved to have been reasonable.”


What, if any, discussions have the MoD had with the Home Office about Clause 28, and is it relevant or not?

I finish by quoting Minister Murrison, who said:

“I hope that the whole House shares my pride in our armed forces. They are renowned throughout the world”.—[Official Report, Commons, 15/12/22; col. 1259.]


Well, we all do, and we are very grateful for their professionalism and loyal service. It is because of that that we need to make sure that we get this inquiry right and that everyone is committed to seeing it succeed.

[Baroness Smith of Newnham (LD)]

My Lords, I start exactly where the noble Lord just left off: by acknowledging the debt we owe our Armed Forces and the high standards to which we hold them and to which the vast majority always adhere. But it is vital for the reputation of His Majesty’s Armed Forces and of our country that, if there has been illegal, inappropriate and unlawful action, it is investigated.

These Benches endorse all the questions that the noble Lord has just asked from the Labour Benches. They are all pertinent to the questions that the House should be asking, but I will add just a few points for further clarification.

One of the first questions that came to my mind was indeed about the Overseas Operations (Service Personnel and Veterans) Act 2021. I note that Minister Murrison had almost second-guessed what noble Lords might ask by saying that the 2021 Act was always designed to enable the investigation and follow-up of any serious allegations, irrespective of time passed. So I ask the noble Baroness whether it is possible to reassure the House that none of the issues that will now be subject to the inquiry could be deemed out of scope under the purview of this Act. One of the serious concerns expressed by all sides of your Lordships’ House was that, precisely by having a time limit, certain crimes and unlawful actions would not be investigated. The House really needs reassurance about that. It is notable that the actions we are talking about date back over a decade, from mid-2010 to mid-2013. The timeframe is therefore very significant.

As the noble Lord pointed out, there are two cases of judicial review at present. It would clearly not be appropriate to ask questions or expect an answer on those at the moment, but might the Minister be able to tell us whether His Majesty’s Government believes that these are the only cases that need to be investigated, or whether the Ministry of Defence is anticipating that there could be further significant cases coming forward? At the moment, we are looking at potentially quite a limited inquiry. However, it could be very significant indeed. Some reassurance would be welcome.

The final point is on the question that we have already heard about the National Security Bill currently going through your Lordships’ House. How does Clause 28 fit with the investigation and the overseas operations Act? Can we, as a Parliament and a country, actually expect there to be proper scrutiny? Clause 28 seems to pave the way for some lacunae in the law. Can the Minister reassure us? If not, she should expect a number of amendments to the National Security Bill from all parts of your Lordships’ House.

[The Minister of State, Ministry of Defence (Baroness Goldie) (Con)]

My Lords, I thank the noble Lord, Lord Coaker, and the noble Baroness, Lady Smith, for their welcome of the announcement of the statutory inquiry into events in Afghanistan. I also thank them for and endorse their comments about the pride that we all have in our Armed Forces. The Secretary of State has been at pains to say that our Armed Forces operate to the highest standards and are hugely respected, as was echoed by my right honourable friend Dr Murrison in the other place. That is why, to be honest, the United Kingdom is one of the very popular choices to provide training: because of the very high standards that we observe.

I entirely endorse what the noble Lord, Lord Coaker, was saying: where we think that things may not have gone satisfactorily, or where there is doubt or uncertainty about what happened, then yes, for the broader reputation of the Armed Forces, we are equally anxious to have that investigated, and in a thorough and robust fashion.

I will take my remarks to be inclusive of the noble Lord, Lord Coaker, and the noble Baroness, Lady Smith. On the question about access to documents, this is a statutory inquiry. That means that it can call witnesses and has the power to compel them to attend, and they give evidence under oath. It will be for the inquiry and chairman to determine what evidence they seek and which witnesses they want to call. I want to make it clear that, given the gravity of the allegations that have been the genesis of announcing this inquiry, it is certainly the Secretary of State’s intention that the inquiry will address any remaining concerns that there was a failure to adequately investigate alleged systemic issues in order to comply with the investigative duties which arise under Articles 2 and 3 of the ECHR.

A further question was asked about how the judicial reviews, of which there are two at the moment, in respect of Saifullah and Noorzai, engage with the inquiry. The Secretary of State for Defence has applied for stays in the Saifullah and Noorzai judicial reviews while the inquiry takes place. The claimant has agreed to stays in both on the basis of the establishment of the inquiry, so the claimants have been party to this. A hearing on that application for a stay is scheduled for January.

A point was raised on the legal scope of the inquiry—what it can and cannot do. It can do a very great deal to try to find out what has happened. Noble Lords will have seen the wide-ranging terms of reference, which I looked at again today. They are very thorough indeed. I might describe them as an attempt to lift up every stone and to try to ensure that every possible angle is investigated. Again, I assure your Lordships that Saifullah and Noorzai were party to and consulted on the terms of reference.

The inquiry does not have the power to determine civil or legal liability, but it does have the power, on the basis of evidence, to draw conclusions and make recommendations. Potential criminal or civil liability might very well be inferred from or arise out of that. The specific question was about what would happen if the inquiry considered that anyone was killed unlawfully. It would be a matter for the independent prosecution to determine how to proceed in such a scenario.

The noble Lord, Lord Coaker, referred to the “Panorama” programme. The Royal Military Police has asked for whatever further evidence there is. We have not received any fresh evidence, but, again, we are handing this over to the inquiry and to Lord Justice Haddon-Cave. It will be for him to pursue these matters.

On the timing of this, the Secretary of State proposed the inquiry, and work began on it, in May 2022.

My understanding is that the Brereton inquiry, which was the Australian inquiry, was slightly different in nature from this inquiry. A key difference is that the Brereton report started the investigation, whereas we have already done extensive criminal investigations of allegations, so we are starting from a slightly different point. Interestingly, the Australian Department of Defence and the Chief of the Defence Force said in letters to counterparts that

“there are no British service personnel who are persons of interest or affected persons as a result of this Inquiry”.

I merely inform the Chamber of what was said at the time.

Questions were asked about the overseas operations Act. That Act was an important attempt to try to reduce the prospect of unlimited clouds hanging over personnel of not knowing whether they would be prosecuted or become the subject of civil proceedings. The new protections for service personnel introduced by that Act apply to any proceedings commenced after 30 June 2021. That Act is not an amnesty, as your Lordships will recall. It raises the bar for prosecutions for alleged historical incidents, and it certainly provides greater certainty to our service personnel.

Your Lordships will recall from when we debated the then Bill in this House that there is now a presumption against prosecution, but it is a rebuttable presumption. The prosecutor has to have regard to various things, not least whether any new evidence has been produced. Finally, before any new proceedings could be brought, the consent of the Attorney-General would be required. Your Lordships will also recall that the Act does not extend protection to specific crimes: sexual offences, genocide, crimes against humanity, war crimes, torture and grave breaches of the Geneva conventions. The restrictions on prosecutions in the overseas operations Act do not apply to any of these offences.

On Clause 28, I must thank the noble Lord, Lord Coaker, for giving me notice of this because it is a technical issue which I was not sighted on. As I think the noble Lord gleaned from my expression in the Corridor, my understanding of the point was limited, but I have made inquiries, and I am advised that Clause 28 of the National Security Bill, if enacted, would not affect the ability of the Secretary of State to establish a statutory inquiry. A Government Minister can establish an inquiry where they consider that particular events have caused or are capable of causing public concern, so it is a broad power that is used in a wide range of circumstances.

However, in law, Clause 28 has a narrow and specific purpose. It amends Schedule 4 to the Serious Crime Act 2007, which, together with Section 52 of that Act, provides for various inchoate offences. I appreciate that we are not sitting in a Chamber crammed full of lawyers, but “inchoate” is an offence anticipating or preparatory to a further criminal act, just to help your Lordships understand that. The Act that is being amended provides for various inchoate offences of encouraging or assisting crime to apply when the Act relates to the commission of an offence overseas. That clause will disapply extraterritorial application when the activity is deemed necessary for the proper exercise of any function of the Armed Forces. This ensures that those working for or on behalf of the Armed Forces in support of activities overseas would not be liable for those offences, but I emphasise the use of the word “proper”. Again, this is not some “get out of jail free” card. If people have behaved improperly, they can expect to be accountable in law. I have no doubt that the noble Lord will want to digest that. If he or the noble Baroness, Lady Smith, have any further questions, I shall be very happy to engage with both of them to see whether I can assist further in clarifying that matter.

The final question the noble Baroness, Lady Smith, asked me, I think, was whether the two judicial reviews are the only cases to be investigated. According to my briefing notes, these are the only two active judicial review applications of which I am aware. I disagree with the noble Baroness—it rarely happens, but on this occasion I do—as she described the inquiry as “limited”. Having looked at the terms of reference, I would describe it as anything but limited. To me, it is one of the most far-reaching and analytical—

[Baroness Smith of Newnham (LD)]

I did not mean that the inquiry was limited; I meant that if we are looking at two cases, that seems to be a relatively small number of allegations that are being looked at, but not that the inquiry itself was limited.

[Baroness Goldie (Con)]

I thank the noble Baroness for the clarification; I apologise if I misrepresented her position. I think we all understand from looking at the terms of reference that the inquiry is going to have a broad scope, immense powers and a real capacity to try to find out what was happening in the periods covered by the terms of reference. I would not want to pre-empt that. It will be for Lord Justice Haddon-Cave, once he has constituted his panel with the inquiry, to proceed and go wherever the evidence takes him. As your Lordships will be aware, in the terms of reference it is hoped that he may be able to report back, albeit on an interim basis, within the next 12 to 18 months, his work starting in January of next year.