Veterans and Soldiers: Statute of Limitations

Lord Lancaster of Kimbolton Excerpts

Monday 25th June 2018 Commons Chamber

[The Minister for the Armed Forces (Mark Lancaster)]

I start by congratulating my hon. Friend the Member for Aldershot (Leo Docherty) on securing the debate. That these issues were last debated just a month ago in Westminster Hall demonstrates Parliament’s commitment to supporting members of our armed forces, both serving and retired.

The idea of a statute of limitations has recently drawn support from many in this place. My right hon. Friend the Member for Newbury (Richard Benyon) has published a ten-minute rule Bill to provide for exactly that. Having been in the Chamber on that Friday when his Bill was before the House, may I recognise and pay tribute to the quiet and dignified protest of so many veterans out on Parliament Square? It would be wrong not to acknowledge that. Equally, I say to my right hon. Friend that while on that occasion—unfortunately, due to parliamentary constraints—we were unable to reach his Bill, I understand exactly why he chose, for technical reasons, to withdraw it to ensure that we can have a debate on it in due course.

So that there is clarity about what is meant by a statute of limitations in this context, let me set out briefly the key features of my right hon. Friend’s Bill—the Armed Forces (Statute of Limitations) Bill. The Bill would introduce a 10-year cut-off point after which prosecutions of members of the armed forces for the offences of murder, manslaughter or culpable homicide could not be brought. The cut-off point, or limitation period, would apply in circumstances in which the person suspected of the offence had been, at the time it was allegedly committed, engaged in armed conflict or in peacekeeping overseas. It would also apply if the alleged offence took place in the UK, providing that a previous investigation into the events in question had already taken place.

This debate is also timely because, as we have heard, last week the Defence Committee announced a new inquiry into just these issues. It is worth highlighting, because they are key in this debate, the questions that the Committee is seeking to address:

“What are the reasons for investigations into former service personnel?...

What difficulties do the UK’s international legal obligations pose for any attempt at protecting service personnel?

Can a Statute of Limitations, extended to all previous conflicts, be designed in such a way as to be consistent with these obligations?

What should be the cut-off date for the Statute of Limitations?”

These are very important questions. Aside from the question of whether a criminal limitation period is desirable in principle, those who support the idea must also engage with the complex practical reality of the legal framework within which our armed forces operate. That point was made by my right hon. Friend the Member for Rayleigh and Wickford (Mr Francois)

The Defence Committee heard evidence in its earlier inquiry that suggested that, in respect of Northern Ireland, any statute of limitations would need to apply to terrorist offences as well as to the armed forces if it were to be lawful under the European convention on human rights. The legal issues to be overcome by a more wide-ranging statute of limitations are more complex still. For example, what offences should be covered? How might it affect the possibility of investigations by the International Criminal Court? How might it be constructed in a way that is compatible with our obligations under the Geneva conventions and the ECHR? If it were to apply to service personnel operating in the UK, what activities would be covered? Should there be any exceptions to the limitation period, such as where new evidence becomes available after the cut-off point? I am really pleased that the Defence Committee will be looking at each of these issues—and more—in depth. The Government look forward to the Committee’s conclusions in due course, and I am confident that this will be a very valuable contribution to the debate.

The principal concerns that the idea of a statute of limitations seeks to address relate to historical investigations taking place in Northern Ireland, as well as to those in Iraq and Afghanistan. I would like to say something briefly about each of those issues. First, let me turn to Northern Ireland. It is only due to the courageous efforts of our security forces that we have the relative peace and stability that Northern Ireland enjoys today. This Government are sincere and unstinting in their gratitude to all those who served throughout the long years of the troubles, many hundreds of whom paid a very high price for doing so.

The Government understand the concerns that people have about the way in which the legacy matters are currently dealt with. Historical investigations in Northern Ireland currently include numerous inquests and investigations into the small minority of deaths attributable to the state. Meanwhile, many terrorist murders go uninvestigated. All those involved—not least the victims and survivors of terrorism, along with former members of the security services—deserve a better approach than the current flawed system, which is not working well for anyone. The Government are committed to putting this right.

The Government propose that the institutions set out in the 2014 Stormont House agreement are the best way to ensure a fair, balanced and proportionate approach to addressing the legacy of the past in Northern Ireland. That is why the Northern Ireland Office is consulting on the detail of how the Stormont House agreement institutions could be implemented. The institution most relevant to today’s debate is the Historical Investigations Unit. The HIU would be responsible for completing outstanding investigations into troubles-related deaths within five years. That would include about 700 deaths caused by terrorists that are not currently being investigated. In addition, the HIU would be required to act in a manner that is fair, impartial, proportionate, and designed to secure the confidence of the public.

As we have heard, last year the Select Committee on Defence looked at Northern Ireland in particular and recommended the creation of a statute of limitations covering all troubles-related deaths involving the armed forces, alongside a non-criminal mechanism for ascertaining the facts surrounding those deaths. While the Committee’s report demonstrated that there was support for alternative ways of looking at the legacy of the past in Northern Ireland, we must acknowledge—this is my understanding —that none of the Northern Ireland parties felt this was an approach that they could consider.

[Dr Julian Lewis (New Forest East) (Con)]

I am glad that the Minister has paid attention to the previous report that we produced on Northern Ireland. I was even more glad that the official response to that report said that the consultation would include a section of alternative approaches that would consider a statute of limitations and a truth recovery mechanism. Unfortunately —and it seems to have happened with the change of Secretary of State for Northern Ireland—that policy has been dropped. My impression, having spoken to ardent loyalists and ardent republicans, is that they are trapped by their rhetoric. They cannot say that they would go along with a statute of limitations, but in reality, if the Government took the lead, they would be able to live with it.

[Mark Lancaster]

I am grateful to my right hon. Friend. I will address that point if he will bear with me.

Because there are a range of opinions, as well as requesting contributions as to how the Stormont House institutions could be implemented, the Northern Ireland Office consultation includes an open question inviting wider views on alternative ways of addressing Northern Ireland’s past. That open question ensures that all those who believe in an alternative way forward will be given a full opportunity to express their views and put forward proposals. As I said in the Westminster Hall debate a few weeks ago, I hope that everyone who has contributed to the debate will find the time to respond to the consultation. I can reassure the House that the Government are committed to considering all contributions carefully before deciding next steps. In that consultation, it is in their response to the open question that hon. Members can express their views on the subject.

Given the time, I should like to move on briefly to Iraq, where the eye-watering number of allegations and the several forms of investigation have created the perception of a witch hunt against service personnel and veterans. While the Solicitors Disciplinary Tribunal’s decision to strike off Phil Shiner shows that many of these allegations were improperly sourced, and some media reports have suggested that many of the claims brought through Leigh Day may be exaggerated, we must not lose sight of the fact that some service personnel in Iraq acted improperly. The death of Baha Mousa, the severe ill-treatment of detainees at Camp Breadbasket, and a small number of other incidents cast a long shadow. It would be remiss of us not to treat all allegations seriously, and we should expect them to be investigated professionally, but no one wants to see prolonged or repeated investigations over many years into the same incident. The Iraq Historic Allegations Team closed on 30 June 2017. When it was established in 2010 it was conceived as a two-year investigation into about 100 allegations of ill-treatment of detainees, but subsequent court decisions here and in Strasbourg opened the floodgates to over 3,600 allegations of ill-treatment and unlawful killing. It was simply overwhelmed, and struggled to identify quickly the few serious allegations and to conclude those investigations promptly and effectively. The service police legacy investigations have fared much better, concluding 73% of their case load within the first nine months. The bulk of the SPLI’s work will be complete by the end of 2018.

On Afghanistan, the number of historical investigations arising from Afghanistan has been far lower. This is due partly to the much smaller number of claims brought by law firms, but also to the more proactive approach taken during operations. By establishing a detention oversight team, which interviewed detainees while in UK custody and following transfer into the Afghan criminal justice system, we were able to ensure that most allegations were identified and investigated at the time. As a result, the Royal Military Police’s Operation Northmoor has had a far smaller case load and has been able to progress its investigations more rapidly than the Iraq bodies. Operation Northmoor has completed over 90% of its investigations, and its case load will be substantially complete by the end of this year.

Today’s debate can have left nobody in any doubt as to the strength of feeling on this vital issue. Inevitably, it is enormously difficult to investigate historical events and to bring those investigations to a satisfactory outcome for the armed forces, for bereaved families or for wider society. I am genuinely grateful to my hon. Friend the Member for Aldershot, and to all hon. Members who have attended tonight’s debate, for providing the House with the opportunity to debate this very important issue. I look forward very much to the Defence Committee’s inquiry, because I believe it will play a valuable part in helping to move this issue forward. Finally, I again encourage everyone to engage with the consultation in Northern Ireland. I reassure the House of the Government’s determination to try to find a way through this minefield and come to a satisfactory conclusion.

Question put and agreed to.