Armed Services: Claims

Lord Bew Excerpts

Thursday 24th November 2016 Lords Chamber

[Lord Bew (CB)]

My Lords, like other noble Lords, I express my thanks to my noble and learned friend Lord Brown of Eaton-under-Heywood for securing this debate. I fundamentally support the underlying thrust of his speech but I confess that I do not have an answer to some of the key questions that have been discussed already. What about derogation of the ECHR? Should the Human Rights Act 1998 be amended, as my noble and learned friend argued? Should there even be retrospective amendments to the Human Rights Act 1998? All these courses of action have their supporters and all of them have their very intelligent and able opponents.

There is no case for allowing the status quo to remain unaltered. UK forces should rightly remain subject to international humanitarian law—the Geneva Conventions—as well as, of course, UK military and civil law; for example, the Armed Forces Act 2006. It is perfectly obvious that it is not just the Geneva Conventions or our domestic law that are important in this respect; it is actually the moral culture of this country, its polity and its military. I will come back to that in a minute.

While the thrust of today’s debate deals with extraterritorial matters such as Iraq and Afghanistan, there is no question that the key moment in what has been called the juridification of armed conflict came in Northern Ireland with, for example, the Bloody Sunday tribunal. There is no question that that is where the great impetus originates from in our modern culture. I was the historical adviser to that tribunal and I do not regret doing that work. Earlier in this debate the noble Baroness, Lady Kennedy of The Shaws, talked about the Baha Mousa case; I think that she used the phrase “A very serious blot on the reputation of the British Army”. I think there is no question that Bloody Sunday was also a very serious blot on its reputation but I would add one thing, which I can say as the historical adviser.

Even before the great tribunal of the noble and learned Lord, Lord Saville, there was the Widgery tribunal, which was so widely dismissed as a whitewash. Lord Widgery referred to reckless firing and said that eight of those who died were innocent. By the way, the only reason that Lord Widgery did not say that the whole 13 were innocent was the duff forensics he had to work with, which were quite rightly later modernised in the work of the noble and learned Lord, Lord Saville. I have seen the response by senior Army commanders to that first report and they did not say, “That’s wonderful—it’s a whitewash and everything is fine on the day”. They said, “This is shocking. We, the British Army are responsible for the death of eight innocent civilians”. This happened before we had a £200 million inquiry and there never was anything like Bloody Sunday again, despite many difficult and dangerous circumstances during the life of the Troubles. That is why I said earlier that we should not just be able to rely on the Geneva Conventions and our own domestic law; we also have some reason to think that we can rely on the culture and reflections on tragic events of our own senior Army officers, and indeed of our own political community in the United Kingdom. It is perhaps worth saying that.

The current run of legacy cases in Northern Ireland have already been referred to in this debate. They are very expensive and, in the end, are always paid for by the long-suffering hero of the Troubles, the unknown British taxpayer. Among the cases running at the moment I am predictably thinking most recently of the inquiry, which some of your Lordships will know of, into the activities of a famous army agent called Stakeknife. They seem to involve at some level the application of humanitarian law and the intrusion of these concepts of human rights into the theatre of war. Let us remember that the IRA always claimed to be waging a just war, from its point of view. We need to think just how wise that actually is as a project.

I return to my argument that the status quo is not sustainable. We have reached a point where, through a number of steps—the Bloody Sunday inquiry was part of this as well as the legal cases that have been referred to—all of this is understandable. At every point the decisions made by judges, whether in this country or elsewhere, and by politicians at various points in this process are all understandable. Yet in the case of Northern Ireland, we have stumbled to this end result: if you were responsible for bombing people in London, you will now have received a letter of comfort. I understand why that decision was made, ambiguous though it was. If you were an IRA person and have that letter of comfort, you will not be prosecuted yet according to the press, the soldiers of Bloody Sunday may in fact face prosecution. As I said, in the chain of decisions not one of them is irrational or not open to a certain type of defence. However, this suggests that the stumbling empiricism that we are engaged in in this field has to come to an end. There is a case for the Government to take some decisive action.