Al-Sweady Inquiry Report

Lord Astor of Hever Excerpts

Wednesday 17th December 2014 Lords Chamber

[The Parliamentary Under-Secretary of State, Ministry of Defence (Lord Astor of Hever) (Con)]

My Lords, with the leave of the House, I shall now repeat a Statement made in another place by my right honourable friend the Secretary of State for Defence. The Statement is as follows.

“With permission, Mr Speaker, I would like to make a Statement on the report into the Al-Sweady inquiry into allegations that British forces tortured and executed up to 20 Iraqi men on 14 and 15 May 2004, and mistreated nine others between 14 May and 23 September 2004.

I am today laying before the House the independent report published this morning by Sir Thayne Forbes as chairman of the public inquiry into these incidents. I am grateful to Sir Thayne and his team for their painstaking work, and for producing a report that puts to rest once and for all these shocking and, as we now know, baseless allegations. As I know Sir Thayne will acknowledge, the Ministry of Defence has provided unstinting support for his inquiry.

During 169 days of hearings, Sir Thayne heard evidence from 55 Iraqi witnesses, 222 current and former service personnel, and four expert witnesses. He also considered the written statements of a further 328 witnesses. His findings are incontrovertible.

It was alleged that, following a planned and co-ordinated ambush of British troops by heavily armed Iraqi insurgents around the Danny Boy permanent vehicle checkpoint on the main road between Basra and Al-Amarah, British service personnel had captured up to 20 Iraqi men alive, had taken them back to Camp Abu Naji, and had then tortured and killed them in cold blood. These are allegations of the most serious nature, and they are untrue.

The allegations have changed several times over the years. This is how Mr Phil Shiner, of the firm Public Interest Lawyers, presented them at a press conference in 2008:

‘What you have heard is evidence that these 5 survivors have witnessed, seemingly in three separate venues at close hand:

The execution of up to 15 men.

Between 4 and 5 of these executions involving shots at close range and the remainder some sort of strangulation or throat cutting.

Some of these executions preceded by torture or mutilations that are so horrific that our clients could not describe the prolonged screaming without breaking down’.

Today it has been confirmed that British soldiers did not carry out the atrocities that have been falsely attributed to them. Sir Thayne deals unequivocally with the soldiers’ actions and the falsity of the allegations. I quote:

‘this Inquiry has established beyond doubt that all the most serious allegations, made against the British soldiers involved in the Battle of Danny Boy and its aftermath and which have been hanging over those soldiers for the last 10 years, have been found to be wholly without foundation and entirely the product of deliberate lies, reckless speculation and ingrained hostility’.

Sir Thayne contrasts the falsity of the Iraqi accounts with the truthfulness of the military witnesses:

‘the vast majority of the allegations made against the British military, which this Inquiry was required to investigate (including, without exception, all the most serious allegations), were wholly and entirely without merit or justification. Very many of those baseless allegations were the product of deliberate and calculated lies on the part of those who made them and who then gave evidence to this Inquiry in order to support and perpetuate them’.

Counsel for the nine former detainees and the relatives of the deceased conceded only as late as March 2014 that the evidence pointed overwhelmingly to the fact that—as the Government have maintained throughout this public inquiry and the preceding judicial review—all those whose bodies were handed over to the Iraqi authorities for burial on 15 May had died on the battlefield.

The delay in making this concession is both inexplicable and shameful. By 4 July 2013, expert witnesses had already demonstrated unequivocally that the Iraqis had died as a result of wounds sustained in the fighting. Had the concession been made then, it would not have been necessary for so many soldiers to give evidence. Sir Thayne could have concluded his hearings more quickly and there would have been a significantly smaller bill to the taxpayer.

Following the battle, the nine detainees were taken to Camp Abu Naji. Sir Thayne has rejected most of the allegations made in connection with the detainees’ treatment at Camp Abu Naji, including a lack of adequate medical care, assaults, withholding of drinking water in contravention of the Geneva Conventions, and the use of ‘white noise’.

I accept Sir Thayne’s conclusion that some instances of ill treatment did occur: the detainees were not provided with adequate food, and such food as was given was not provided until after they had been tactically questioned; they were prevented from sleeping until three to four hours after arrival at the camp; the detainees’ sight was restricted almost continuously; and the tactical questioning involved the use of the—since withdrawn—‘harsh’ technique and thus amounted to ill treatment. Importantly, Sir Thayne observes that as a result of changes by the MoD over the past several years, such ill treatment should not occur in future.

Sir Thayne also concluded that the requirement for detainees to undress fully as part of the medical examination and concurrent search for prohibited items amounted to ill treatment, and he criticised the attitude of the regimental medical officer towards the medical examination of the detainees on their arrival at Shaibah. But Sir Thayne has concluded that only one of the detainees—who suffered discomfort for longer than he might otherwise have done—suffered any adverse consequences as a result of any deficiencies in the medical examination. I wish to express my regret to the House that these instances of ill treatment should have occurred.

Sir Thayne Forbes has made just nine recommendations, and acknowledges the progress that the MoD has made since 2004 to improve all aspects of the prisoner-handling system—from policy and doctrine to unit-level instructions and procedures, as well as training and oversight—and ensure that these comply with domestic and international law. I accept all nine in principle but have commissioned urgent work on their practical implications. In particular, we need to ensure that they will not prevent the Armed Forces from carrying out vital tasks. I will announce to the House my final conclusions as soon as possible.

The Iraqi detainees, their accomplices and their lawyers must bear the brunt of the criticism for the protracted nature and the £31 million cost of this public inquiry. The falsity of the overwhelming majority of their allegations, the extraordinarily late disclosure of a document showing the nine detainees to have been insurgents, and the delay by their lawyers in withdrawing the allegations of torture and murder, have prompted the Solicitors Regulation Authority to investigate possible breaches of professional standards. It is expected to complete its investigation into Public Interest Lawyers and Leigh Day & Co early next year.

Had the Legal Services Commission been aware in 2008 of this document, it would have refused legal aid for the judicial review which took place then. This would have spared the service personnel a further six years of uncertainty and anxiety, the relatives of the deceased a further six years of false hope, and the British taxpayer a very high bill.

While procedural failures by MoD led to this public inquiry being established, it is those who made these false allegations who bear responsibility for saddling the taxpayer with what has turned out to be a £31 million bill. While there is no provision in the Inquiries Act for recovering the costs of a public inquiry, the MoD is exploring whether the claimants’ failure to disclose the militia document will allow us to recover any of the costs in the judicial review.

I regret that it was found necessary to hold a public inquiry to disprove these allegations. This is not another Baha Mousa or an Abu Ghraib. No one died in British custody. There was no deliberate ill treatment. Rather, the few instances of ill treatment were the result of failings in doctrine and training that have already been or are being corrected. This was a shameful attempt to use our legal system to attack and falsely impugn our Armed Forces. That it has failed reflects the diligence and skill with which Sir Thayne has uncovered the facts.

I quoted earlier the accusations made by Mr Shiner of Public Interest Lawyers in calling for this inquiry. At that time he said:

‘Do not believe for one second that we make these allegations lightly or without the evidence available to substantiate every single word of what we say’.

It is now beyond doubt that those allegations were without foundation. I challenge him and the other lawyers involved to issue an unequivocal apology to the soldiers whose reputations were traduced, and to the taxpayers who have had to pay the costs of exposing these lies.

I would add only one final remark. Following the Battle of Danny Boy, five soldiers were awarded the Military Cross and one the Conspicuous Gallantry Cross for their conduct there and in other engagements in early 2004. Other acts of bravery emerge clearly in the accounts of the battle. This is who our service men and women are. The reputation of our Armed Forces has been hard won in the service of our nation. It will survive the baseless slurs of those who seek to undermine those on whom we all depend.

I commend this Statement to the House”.

My Lords, that concludes the Statement.

--- Later in debate ---

[Lord Astor of Hever]

My Lords, we, too, welcome the report and the spirit of the recommendations. It is a full account of what happened and we are most grateful to the chairman for his careful analysis of the evidence. I agree with the noble Lord that our Armed Forces are the best in the world. They were in great danger and we owe them only a debt of gratitude. A couple of months ago, I was honoured to meet many of the soldiers who served on TELIC 4 at their service in Southwark Cathedral commemorating the 10th anniversary of TELIC 4. It was a very difficult tour and the post-operation report by the 1st Battalion The Princess of Wales’s Royal Regiment reported more than 850 contacts, 250 rocket or mortar attacks and close to 40 casualties during the period April to June 2004.

This report will come as some form of relief to the soldiers involved in this deadly insurgent ambush. The report identifies that they acted with exemplary courage, resolution and professionalism. The noble Lord said—and we agree entirely with him—that we must be accountable to UK and international law, and we must be open and frank when high standards are not met. While the vast majority of the accusations against the military were entirely without merit and the Army’s use of force was appropriate, there were some instances of ill treatment. We are satisfied that those incidents would not occur today thanks to changes made since 2004, including, as the noble Lord said, as a result of the Baha Mousa inquiry.

The noble Lord asked me about the recommendations. We accept the intent of all the recommendations but want time to study them fully and to consider their practicalities. In particular, we need to ensure that they will not prevent the Armed Forces carrying out vital tasks. We will announce the results to Parliament as quickly as possible.

Of course the Army and its soldiers must be held to account when they fail to uphold our high standards. I entirely agree with the noble Lord on that. However, this case raises—the noble Lord alluded to this—serious questions about how far the tentacles of litigation of this kind should extend into the battlefield, where our people are forced into making split-second decisions under the most intense and deadly pressures.

I wish to make one point on the recommendations. There was criticism of the storing of documents. We have implemented a better system for collecting, repatriating and archiving information created during military operations, and there has been no occurrence of failures since then.

The noble Lord asked whether we have improved detention. All this happened 10 years ago. The procedures have changed and lessons have been learnt in the decade since the early stages of the Iraq campaign. Our detention practices have now been brought fully into line with UK and international law. The Army Inspector, who is independent of the chain of command, confirmed in two inspections in 2010 and 2012 that these changes have taken effect.

The noble Lord asked about the service men and women who were involved and who might still be serving. I understand that one is still serving and the others have all left. No disciplinary action has been taken against any of the soldiers whose treatment of the detainees the report finds amounted to ill treatment, nor is it clear that disciplinary action could be taken now against any soldier still serving since the report accepts that they acted in accordance with their training.

[Lord Thomas of Gresford (LD)]

My Lords—

--- Later in debate ---

[Lord Astor of Hever]

My Lords, I, and I am sure the whole House, would agree with what my noble friend says. He asked me about the Legal Aid Agency’s inquiries into Mr Shiner. The agency was asked by the previous Lord Chancellor to investigate whether Public Interest Lawyers withheld these documents, thereby improperly obtaining public funding for the judicial review. The LAA has referred some concern to the Solicitors Regulation Authority and we understand that the SRA had already commenced an investigation into whether PIL or Leigh Day & Co breached any professional standards.

[Lord West of Spithead]

My Lords, I welcome this report, which has been thoroughly done—and thank goodness it has put to bed those dreadful claims. However, I have some real concerns. We seem to be more willing now to concern ourselves with the human rights of people who set out to kill us—these men were actually intending to kill our soldiers, and often people are intending to kill civilians as well—than with the human rights of our own soldiers. I also have a real concern, to which the Minister alluded, about the impact that it might have on operational considerations. There is no doubt, when one looks back over the past few years, that these pressures, concerns and behaviour have an impact on operations. It has happened within the Royal Navy and in the Army. War is a nasty, bloody and horrible business; we cannot pretend it is anything else. People have to make decisions in seconds. When you are trying to get operational information, sometimes it is not the nicest thing possible. That does not mean that we should break all the human standards and behaviour that we expect—and we do not. But we have to be very careful about putting too many limits on them. I share the view of the noble Lord opposite about Mr Shiner and his firm and the other firm. I have managed to read only the first part of the report but clearly there are issues that need to be looked at by more than the Solicitors Regulation Authority. They should be looked at in great detail because we should never allow this sort of thing to happen to our own people by firms in this country. An ambulance chaser is too good a term if what is said in the report is true.

[Lord Astor of Hever]

My Lords, I thank the noble Lord for his support. I agree very much with what he says. He is concerned about service men and women on operations. I have discussed this issue at some length with the noble Viscount, Lord Slim, who I know also has concerns on this. I have spoken to many service men and women in the Army and the Marines, and I think that we have got it right at the moment. We learnt a lot of lessons in Iraq and Afghanistan—lessons learnt by the previous Government—regarding detention, interrogation and the rules of engagement. The lawyers learnt a lot of lessons, too. A few years ago I had many complaints about lawyers from soldiers, but I have not had a single one since I have been a Minister. I feel quite comfortable—from talking to soldiers, especially to the Special Forces, although we cannot say too much about that—that we are in a good place at the moment.

[Lord Dannatt (CB)]

My Lords, as a former Chief of the General Staff, and speaking on behalf of all those who have served, are serving and will serve in the Army, I can say that this report is extraordinarily welcome. It is no surprise because the allegations were so outrageous that they were always going to be found to be baseless. I say that because, as I am sure the noble Lord will agree, when we believe that things have gone wrong we are not backward in coming forward to launch an investigation. Baha Mousa, who has been mentioned several times in the Chamber this afternoon, is a clear case of that.

Does the Minister agree that what comes out of this report, among other things, is that there is a somewhat unhealthy predisposition to take the allegations sufficiently seriously when common sense and normal practice—and the normal values and standards of behaviour of the Army—fly in the face of those allegations? There has been a predisposition to take seriously allegations by a firm called Public Interest Lawyers, but in whose public interest it operates I really do not know. We took it so seriously that we were prepared to spend 10 years and £31 million investigating something that many people, after a preliminary investigation, would have thought was baseless, as it has turned out to be. The stress and strain placed on many worthy servicemen who were doing their duty in the most difficult circumstances is an outrage and a stain on a wider process. I hope we do not go down the same track again and enter into an investigative process where the likelihood of a conviction coming out of it is so extraordinarily low.

[Lord Astor of Hever]

My Lords, I agree with the noble Lord and I pay tribute to all those service men and women who served in Iraq. I know that the noble Lord had a very distinguished service out there. Lessons have been learnt. Ministers are very concerned about the situation; we have discussed it at great length. I assure the noble Lord that lessons have been learnt. We do not want ever to have another inquiry like this. I make no criticism of the previous Government for calling this inquiry. There were very good reasons for doing it. However, we need to talk to the legal industry to see whether there is some way of avoiding going down this road ever again.

[Lord Trefgarne (Con)]

My Lords, it is clear that the action of the lawyers, which has been commented on by several noble Lords, greatly contributed to the huge cost of this exercise. Can my noble friend say whether there is any possibility of reclaiming some of those costs, possibly from the firms of lawyers concerned?

[Lord Astor of Hever]

I agree entirely with my noble friend. There is no provision for the sponsoring department to recover costs incurred during a public inquiry. However, in light of the inquiry’s findings and the claimant’s disclosure failure, I assure my noble friend that we intend to appeal a costs order in the stayed judicial review, with a view to recovering some of the costs of that litigation.

[Viscount Slim (CB)]

My Lords, I ask noble Lords to think carefully and—as you always do—sensibly about this business of tactical questioning. This could have been an action with a wider content in the overall Iraqi plan. Further down the road or within 24 hours another major ambush such as this may have been contemplated, was being prepared for and would take place. Therefore, the immediate tactical questioning was very important to discover whether the incident was isolated or part of a larger plan. One has to be severe in the questioning, and there are ways of doing that, harsh and not so harsh—they could be offered a cigarette, for example, but there is no need to go into details. But it is vital to find out if there is more to come, immediately.

Therefore, when you use tactical questioning, which is not deep interrogation, minds should allow for this up to a certain period. The Ministry of Defence has now defined what can take place immediately after the battle, which is for the good and necessary for the future. If the Iraqis had captured nine of our soldiers, we would not have nine soldiers to speak to today and it would have been a slow process of death. It is worth remembering these things.

[Lord Astor of Hever]

My Lords, I am assured that there is now a clear policy on tactical questioning and interrogation. This policy has been in place since 2005. The policies were separated in 2010 to emphasise the distinction between the two disciplines. They were further revised in 2012 to incorporate recommendations from the Baha Mousa inquiry and have been reviewed following the Court of Appeal judgment on the Hussein case.

Obviously, as the noble Viscount said, I cannot go into details of interrogation, but again I have spoken to a large number of service men and women about this subject, which interests me a lot, and I have visited military police. I accept that we still have many lessons to learn from noble Lords with a lot of experience in this and I am always ready to hear whatever advice they may have.

[Lord Snape (Lab)]

My Lords, as, I suspect, one of the few ex-NCOs here, I feel considerably outgunned by one or two of the contributions.

[Lord Snape]

Well, like the noble Viscount, my father joined up in World War II and became an NCO. I was fortunate enough to join the Armed Forces during a period of peacetime. What I was attempting to put to the Minister was that I believe that no other army in the world could behave with the restraint shown by the British Army, particularly after incidents such as the Danny Boy incident.

As for the report’s conclusions about ill treatment, does the Minister agree that the question of inadequate food and sleep would apply to the soldiers as much as to the detainees? On the question of Public Interest Lawyers, is the Minister aware that Mr Shiner made his reputation by attacking members of the police force, largely unsuccessfully for many years, before moving on to trawling round the battlefield looking for people prepared to make allegations against the British Armed Forces?

[Lord Astor of Hever]

My Lords, I agree with what the noble Lord said about our Armed Forces. I do not think that any other army would put themselves through the inquiry that we have had since 2004. The noble Lord asked about inadequate food and whether that also applied to the soldiers. That may well have been the case. I was not aware that Mr Shiner had started his career chasing after the police. I was interested to hear that.

[Baroness Manzoor (LD)]

If there is to be an investigation by the SRA into the conduct of the solicitors, will my noble friend assure the House that that investigation will be concluded speedily, as investigations can take quite some time to complete?

[Lord Astor of Hever]

I can give my noble friend that assurance, yes.

[Lord Bew (CB)]

My Lords, may I address again the question of cost? Since the Bloody Sunday inquiry, which has already been alluded to by the noble Lord, Lord Rosser, we have lived in an era of the juridification of armed conflict. These inquiries are often necessary—I was the historical adviser to that inquiry—but it cost £200 million. This inquiry has cost £31 million. We can be pretty sure that, despite the observations made in this House this afternoon, Mr Phil Shiner is not going away. There is an interesting question in this report about possible ways to avoid such costly inquiries in the future. Would the Minister comment on those? These inquiries often govern, as he said earlier, split-second decisions made in moments of conflict.

[Lord Astor of Hever]

My Lords, I listened to part of the Statement as it was made in the House of Commons, and I think the suggestion was made that we should be talking to the legal profession to see whether there is some way to cut down the costs and simplify the process in the future. As I understood it, the Secretary of State responded favourably to that. Let us hope that it is one way forward.

[Lord Freeman (Con)]

My Lords, I welcome the sensible and clear conclusion of the inquiry. Will my noble friend bear in mind that, if there was any move to transfer responsibilities from British justice to the International Court of Justice, there would be serious misgivings on many sides of this House?

[Lord Astor of Hever]

My Lords, yes. I am well aware of the point my noble friend makes.

[Lord Soley (Lab)]

As a country that promotes the rule of law, I think we can be proud of this report in the face of such serious allegations. It does us a great service overseas when people can see our open and free system of justice. I do not wish to repeat the many points that have been made, the vast bulk of which I agree with, but I want to make a suggestion to the noble Lord. Over the past 20 years or so, and not just in military cases, I have noticed a tendency in the legal profession when handling high-profile cases to make statements to the media in which they often do not make it clear that there must be a presumption of innocence, not a presumption of guilt. I wonder if the noble Lord would consider putting it to the Attorney-General that he needs to engage in discussions with the professional bodies representing the legal profession to make sure that when statements are made, lawyers, barristers, solicitors and anyone else should always make it absolutely clear that there must be a presumption of innocence, even in the most difficult of cases.

[Lord Astor of Hever]

I very much agree with the noble Lord that any statement to the press should point out the presumption of innocence. I know that the noble Lord takes a great interest in this subject, and indeed I think I sat next to him on a C17 going out to Afghanistan a few years ago.

[Lord West of Spithead]

My Lords, I apologise for coming in again, but the point made by my noble friend does raise something. There is a perception around the globe that we are guilty of doing ghastly things because of the way it was put out by so much of the media. In terms of our Prevent strategy and our outward-looking strategy, can I ask the Minister whether we are really going to make sure that it gets around that there was absolutely nothing behind this? We need to put that out through all the channels like the Prevent strategy and others.

[Lord Astor of Hever]

My Lords, the noble Lord makes a very good point and I will take it back to the department. I shall talk to other Ministers and to our media people to see what we can do to get into the outside world the very important message referred to by the noble Lord.

[Baroness Deech (CB)]

My Lords, there has been considerable criticism of the legal profession in this short debate, and of course I would not for a moment defend the costs and the conduct. It helps one to understand the backlash against human rights. On the other hand, this House has recently stood up for the principles of judicial review. I think we have to bear in mind that, although we may criticise the lawyers in a particular case, when it comes to needing a fearless inquiry or needing people who will stand up to the Government no matter how unpleasant and difficult the circumstances, our legal profession still has a lot to be said for it. Its members should not be wholly condemned because of this particular incident. There are, of course, two sides when considering the legal profession.

[Lord Astor of Hever]

My Lords, I have to be very measured in my criticism of the legal profession because I have a number of lawyers who are closely related to me.