UK Defence Forces

Lord Bew Excerpts

Thursday 23rd November 2017 Lords Chamber

[Lord Bew (CB)]

My Lords, I thank the noble Lord, Lord Soley, for securing this debate and for his excellent speech in introducing it. The noble Lord speaks in the Labour tradition of the progressive and patriotic internationalism of Attlee and Bevan. So much that has been said from the Labour Benches this morning has been precisely in that tradition. That is a great comfort, because we need in this matter above all matters a bipartisan approach.

That tradition is not dead. It is worth referring to a speech given at Chatham House on 26 October by Chuka Umunna, “A Bolder Britain: Remaking a Major European Power”, which expresses it with great force. Towards the end of it, he said clearly:

“One of the priorities for a Labour Government must be a Strategic Defence and Security Review to give the electorate, our allies and our potential enemies a clear message of our intent and purpose. Our spending commitment should rise above NATO’s two per cent of GDP, lifting it incrementally to 2.5 per cent over a five year period. This will allow us to maintain our conventional forces at an adequate level”.


It is clear from so much that has been said today that we have a problem of morale in our Armed Forces. The noble Lord, Lord Davies, said that the best and brightest do not join institutions which are subject to constant cuts. We have probably all noticed with some pleasure the presence in the House of Commons of relatively young former Army officers on the Benches of both parties who are making major contributions to debates such as these. I am as impressed by them as many others. I am also slightly worried. Do we have quite so many of them because they are no longer so conscious of the desirability of a long-term career in the armed services?

I have made it clear that I am in favour of raising the level of our current defence expenditure, for reasons that have been so eloquently stated today. I want now to refer to some of the difficulties, because I know they exist.

First, there is inevitably wastage in defence expenditure. There is no silver bullet about this; there will always be some wastage, because nobody can precisely guess what our future priorities might be—I acknowledge that. However, there is public concern, and the battle has to be won here, about revolving-door issues through the Ministry of Defence and the defence companies and about expenditure which sometimes seems very large and which our Armed Forces do not seem to have benefited very much from. Attlee first raised such concerns in 1925, and they will not be sorted out in any short order—and I am not expecting the Minister now to do so. On the other hand, the Prime Minister, when she took office, made a number of speeches acknowledging her awareness of public concern about these issues. If we are going to win the battle, we will have to deal with it.

The matter is made extremely difficult now because of Brexit, because it places the Government in a situation where they have to bring people into government very quickly to solve technical problems. It is very difficult for government to deal with such issues. In the short term, there is no silver bullet, but in the medium term the Government should send out a signal that they acknowledge public concern about this issue—so much is written in the press about it. I am certain that practice can be improved. There is a battle to be won here. Part of the battle to ensure that we have a proper level of defence expenditure will be to reassure public opinion.

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.

Iraq Inquiry

Lord Bew Excerpts

Tuesday 12th July 2016 Lords Chamber

[Lord Bew (CB)]

My Lords, I rise to express my respect for the work of Sir John Chilcot and his colleagues in the production of this extremely serious and important report. The remarks I will make are different in tone from any of the other remarks that have been made in the House this afternoon because I intend to concentrate simply on the domestic context of the Chilcot report.

It seems only yesterday that we were widely assured by the media that Sir John was a man with no conscience, that he was another empty Whitehall suit, that we could be reasonably assured that the report would be yet another cover-up, and so on. It has most certainly not been so. Everyone now accepts that to be the case. There was no reason ever to think that it might be so. I shall make the obvious observation that at the time he was appointed Sir John Chilcot was the chair of the advisory committee of the Centre for Contemporary British History. The Centre for Contemporary British History has only two purposes: first, to assert the importance of what we can learn from contemporary history for policy-making, and, secondly, to assert the importance of the public accountability of government and officials. Nobody would devote their time to that job if they were the sort of person who believed that it is better to sweep things under the carpet. It is such an obvious fact in his curriculum vitae, yet it did not seem to occur to anybody over the past year or two in their discussion in the lead-up to this report.

The second obvious thing about Sir John’s career is that he was Permanent Under-Secretary in Northern Ireland between 1990 and 1997 and played a major role, working first for John Major and then for Tony Blair, in bringing about the success of the peace process based on historic compromise. In those seven years, Sir John was confronted by heart-rending, dreadful moments in the history of Northern Ireland. Those who heard him speak at funerals et cetera had no reason to believe anything other than that he was a man who had a serious heart and a serious moral centre. Quite why these perfectly obvious stand-out features of his career have somehow disappeared in the past three or four years from contemporary discussion in the media of this report and its evolution is quite beyond me. I am very happy that at this moment we can say that it is perfectly clear that Sir John Chilcot was determined to bring about a report characterised by honesty, clarity and serious research.

I am a little uneasy about one question with respect to the reputation of the former Prime Minister Mr Blair. More than 700 British soldiers died in Northern Ireland. He played a major role in bringing that conflict to an end. Some of those currently on the left of the Labour Party—now at the apex of the Labour Party—are the most bitter in their criticisms of him and of the errors clearly made that are located in the Chilcot report. Some of those people were bitter opponents of the work that he did and disagreed fundamentally with his attempt to bring about an historic compromise in Northern Ireland. It is worth mentioning it at this difficult moment to put that point into the balance.

This report is excellent but it will, in certain respects at least, be challenged over time in certain areas. This is inevitable. I was the historical adviser on the Bloody Sunday tribunal, which was the last great report of this kind. There are now articles written in books, serious commentaries and new documents coming to light, even now, after all the work and all the time, which raise reasonable doubts about certain arguments of the Bloody Sunday tribunal. There is nothing that comes close to breaking the fundamental structure of the argument of the noble and learned Lord, Lord Saville, but when it comes to significant parts about the role of x or y you would have to say that there may be another way of looking at it. This must inevitably be the case with parts of this report. More documents will come out in America and so on. I simply make the point that what is said this afternoon cannot be absolutely the last word. It is most unlikely that the fundamental arguments will change, but it cannot be absolutely the last word on all the issues addressed.

I took great comfort from what both Front Benches said at the beginning of the debate. We cannot give up on the idea that at some stage this country may again be called to make an international humanitarian intervention, and it would be disastrous if we interpreted the Chilcot report as saying that under no circumstances can we ever respond again because in this case things went so badly wrong. This problem has been with us for a long time. In 1859, in his A Few Words on Non-Intervention, John Stuart Mill wrote that it was time that,

“some rule or criterion whereby the justifiableness of intervening in the affairs of other countries, and (what is sometimes fully as questionable) the justifiableness of refraining from intervention, may be brought to a definite and rational test”.

We have been assured that with the national security and other new arrangements in place the context for that definite and rational test is probably wiser and better than it has ever been, but we cannot allow this report to send out the message that under no circumstances will the United Kingdom be available for humanitarian intervention, even though we have had a very sharp lesson in its risks.

Al-Sweady Inquiry Report

Lord Bew Excerpts

Wednesday 17th December 2014 Lords Chamber

[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.

Armed Forces: Legal Challenge

Lord Bew Excerpts

Thursday 7th November 2013 Lords Chamber

[Lord Bew (CB)]

My Lords, I thank the noble Lord, Lord Faulks, for securing this debate and for his excellent speech. I speak with some trepidation, not being a noble and learned Lord or a noble and gallant Lord. I am not even, as the noble Lord, Lord Faulks, put it, slightly whimsically, a mere lawyer. I speak as an academic, but as one who discovered, on reading the important and commanding academic article by Professor Anthony Forster in International Affairs, Vol. 88, on the process of juridification of armed conflict, that I had played a somewhat unwitting role in this process, as historical adviser to the Bloody Sunday tribunal.

Professor Forster lists a number of key moments in the period since I became an adult, over the last generation, in which one can see this process of the juridification of armed conflict. Some have already been referred to in our discussions, such as the Supreme Court ruling in Smith this summer, and the Baha Mousa case. However, he also mentions the Bloody Sunday inquiry, and what it tells us about changing attitudes, a number of times. He makes a very serious point: it is an obvious example not just of the way that the judiciary has become engaged in the process of the use of force by our soldiers but of how the concept of national interest has changed, in the sense that it was inconceivable for British Governments to formally challenge, in that way, the past use of our soldiers in conflict at a later date. The decision of the Blair Government in 1998 to reopen the issues dealt with by the Widgery inquiry in the early 1970s is an example of the way in which the traditional concept of national interest has changed, for good or ill.

Professor Forster’s point in his article is that, emotionally and in a number of ways, our society’s view of these questions is in the process of flux and change; I think this is indisputable. I remember being a student in Cambridge in 1972, when Bloody Sunday occurred, and there is no question that that day, when 14 innocent civilians were killed, is one of the least happy days in the history of the British Army. I remember watching the demonstration of students in Cambridge. I can see in my mind’s eye the people in that demonstration, one of whom, for example, came to hold one of the highest offices of state. There is no question that, in this respect, our attitude as a society and the attitude of leaders, public opinion and so on has evolved.

In some respects, the Widgery tribunal is often discussed a little unfairly. Lord Widgery actually said that a majority of those who died on the day were innocent—that has been forgotten—and the Army’s response to discovering his view was one of being disturbed. However, it is hard to avoid the sense that the structure of feeling surrounding the tribunal was very different from the structure of feeling that we have today. It has already been referred to by noble Lords that, in the post-war period, judges themselves had often served in the military, as had Lord Widgery. A key issue in the Bloody Sunday tribunal was the role of the general in Northern Ireland, General Ford, who had been a very brave soldier at the D-day landings. It is almost inconceivable that these recollections and emotional associations were not in Lord Widgery’s mind when he considered the issues posed by Bloody Sunday; it is humanly inconceivable.

We have now moved into a very different world. Lord Justice Moses refers to this in the introduction to the Policy Exchange pamphlet that has been referred to a number of times during this debate. He talks about remembering, as a boy, cases coming up before a judge where a burglar comes into the court, puts on his regimental tie and medals and the judge regretfully looks at him and returns half the merited sentence for the crime. This world has gone completely; it is not to return. I know that and Professor Forster knows it. We know that the Widgery tribunal inquiry was inappropriate and inadequate. He states clearly that he has no regrets about being an historical adviser to the new tribunal. It is not a question of trying to create a context in which the Armed Forces operated outside civilised standards. Politically we have to be aware of the fact that, in the wars of choice that have been referred to in recent times, as the fundamental ideological justification of these wars has been the defence of human rights, it is all the more important that our Armed Forces are perceived to behave properly in context, as far as possible, with obligations to human rights.

However, we have reached a fundamentally unstable point. I listened with great interest today to the words of the noble and learned Lord, Lord Hope. I do not want to be misunderstood. There is an argument about whether the four were right in the Supreme Court, whether the three were right in the Supreme Court, and whether there were exaggerated fears out of the ruling that came from the majority on the Supreme Court. I understand that argument and I am extremely grateful to the noble and learned Lord for the way in which he explained the position with great clarity today. However, the real problem is that we are on a slippery slope once we move to a rights-based jurisdiction, away from the unproblematic concepts of national interest and the relationship between the state, the judiciary and the Armed Forces that existed a generation ago when I was a young man. We are now in a new place. Indeed, Professor Forster says at the end of his piece that once you move away from those concepts to rights-based arguments, because of the difficulty of reconciling and aligning competing rights, the context is always unstable.

That is why, despite the hints that come from on high, there will be no end to litigation on this subject; the floodgates are absolutely open, despite the hints that people perhaps misunderstand the full implications of the ruling of the majority in the Supreme Court. That is why, like the noble and gallant Lord, Lord Craig, I was attracted to the argument on the question of Parliament looking again at combat immunity. Perhaps the noble and gallant Lord is right to believe that this is not the right step at this moment, although there are other steps that Parliament might consider taking. However, what is certain is that there is no stability in the place that we have currently reached, and we owe our Armed Forces that stability.