Iraq Historic Allegations Team

Danny Kinahan Excerpts

Wednesday 27th January 2016 Westminster Hall

[Richard Benyon]

I share my hon. Friend’s feelings. Rather than spend the time talking about our views of those lawyers, however, which would be self-indulgent, I want to get to the bottom of this concept of legal imperialism.

I am glad that since I requested the debate the Prime Minister has announced that he has asked the National Security Council to produce a comprehensive plan to stamp out the industry. He is looking at banning no win, no fee schemes; he is speeding up the planned legal aid residency test; and he is strengthening penalties against firms that abuse the system, possibly even including suing those who have been found deliberately to withhold facts that could prove the innocence of the servicemen or women concerned.

That is all good stuff, but I want to press the Minister for more information on the timescale for the reforms. I suggest that they can only be seen as work in progress. May I respectfully suggest that the Minister add to the Prime Minister’s wish list the suggestions made in the report by my hon. Friend the Member for Tonbridge and Malling?

In order to draw a line under the situation, for recent and future conflicts the Prime Minister should consider these powerful recommendations. The Government should derogate from the European convention on human rights in respect of future overseas armed conflicts, using the mechanism of article 15 of the convention. The Government should revive the armed forces’ Crown immunity from actions in tort during all future “warlike operations” overseas by ministerial Order under the Crown Proceedings (Armed Forces) Act 1987. The Government should take the lead—this is important—in supporting efforts by the International Committee of the Red Cross to strengthen the Geneva conventions on the conditions of modern warfare, which addresses the point made in an early intervention by my hon. Friend the Member for Wealden (Nusrat Ghani). The Government should make an authoritative pronouncement of state policy, declaring the primacy of the Geneva conventions in governing the conduct of British forces on the battlefield.

[Danny Kinahan (South Antrim) (UUP)]

I am grateful that we are having this debate. Does the hon. Gentleman feel that alongside the conflicts of the past we need to concentrate on the past in Northern Ireland as well? We should also look at a proactive media presence so that we are in front when defending our servicemen, rather than waiting for every case to get to the papers.

[Richard Benyon]

The hon. Gentleman is right. I support the plea by my hon. Friend the Member for Aldershot (Sir Gerald Howarth) that incidents such as that of the arrest of Lance Corporal J of the Paras under caution should cease. Society wants a line drawn under such things. We seem to have moved too far towards favouring the actions of our enemies and we do not seem mindful enough of those to whom we owe a great debt.

The recommendations I have just outlined are clearly set out in the report of my hon. Friend the Member for Tonbridge and Malling. It makes it clear that we are not only talking about alleged victims of war crimes, excessive violence in combat or the mistreatment of prisoners. The definition of “lawfare” extends to the ability of the courts to judge the actions of commanders—decisions often taken in the heat of battle and then judged years later by people for whom such circumstances are alien and with the mantle of hindsight.

I go back to my own experience. I got to know well a 19-year-old soldier who, in a tense situation, shot and killed someone contrary to the so-called “yellow card” rules for opening fire. He was convicted for murder. The case has haunted me for 34 years. My worry is that the legal imperialism we have seen in recent years and the existence of organisations such as IHAT will put a dangerous caution in the minds of the sniper of the future. Rather than taking a life to save many, caution prompted by a fear of legal implications might, to quote my right hon. Friend the Member for Mid Sussex,

“put a splint around his trigger finger”.

The analogy extends into every area of war, involving everyone from the most junior soldier just out of training to the most gnarled veteran of a quarter century of expeditionary warfare. The Apache pilot, the mortar platoon commander and the frontline rifleman all need to be governed by the rule of law—but which law? That is the matter that the Minister and the Government must tackle with haste. However despicable we might think the actions of certain lawyers are, they are only responding to circumstances created by Governments past and present. My argument is that the rules we have created put our servicemen and women in greater danger in future. That cannot be right.