Armed Services: Claims

Debate between Earl Howe and Lord Thomas of Gresford

Thursday 24th November 2016 Lords Chamber

[The Minister of State, Ministry of Defence (Earl Howe) (Con)]

My Lords, I am very grateful to the noble and learned Lord, Lord Brown, for tabling this Motion. The issues that it covers have been debated on a number of occasions in this House in recent years. I thank the noble and learned Lord for his continued concern about these matters, his masterly résumé of the issues involved and this timely opportunity to take stock of recent developments. The contributions to this debate have shown how much is at stake here, above all the ability and confidence of our Armed Forces to conduct effective operations in our national interest.

Before I outline the measures we are taking to mitigate these issues, I should start by emphasising the point well made by the noble and gallant Lord, Lord Stirrup: that the Armed Forces of the United Kingdom are required, without exception, to comply with all applicable domestic and international law. That said, a series of court judgments have created uncertainties about some aspects of the law relating to the conduct of armed conflict, or unintended consequences that could well impact on our Armed Forces’ ability to train and operate. The Government have expressed their concerns about this in recent years, and the manifesto commitment last year, which was to,

“ensure our Armed Forces overseas are not subject to persistent human rights claims that undermine their ability to do their job”,

was a clear signal of their intent to tackle the effects of legal claims and legal developments.

The strength of interest and the quality of debate we have heard here today demonstrate the breadth and complexity of the challenges we face. Military operations in Iraq and Afghanistan have led to an unprecedented volume of litigation about, for example, ECHR jurisdiction, detention, and how international humanitarian law and the European Convention on Human Rights interact in armed conflict, and which include thousands of private law claims for compensation. The personal impact on service personnel has been brought to light in the context of IHAT—the Iraq Historic Allegations Team. We have also seen what I will simply call questionable conduct on the part of some law firms, as well as escalating costs for defending claims or conducting investigations where the evidence or allegations are, at best, unsubstantiated or, at worst, based on lies, as witnessed in the Al-Sweady public inquiry.

All these problems require a broad-based response; there is no simple remedy. The Government have accordingly been giving careful consideration to how to manage the adverse effects of these legal challenges and avoid similar difficulties in the wake of future conflicts. We have already taken a number of steps to help this mitigation. First, as a number of noble Lords have mentioned, the Prime Minister and the Defence Secretary have already set out the Government’s intention to derogate from the European Convention on Human Rights, where appropriate. I was grateful for the comments of the noble and gallant Lord, Lord Richards, on this issue. Let me be clear here: there is no question of a blanket opt-out from the ECHR. If and when a derogation is made, it could be made only from certain Articles of the convention and would have to be fully justified by the circumstances pertaining at the time. Where justified in the light of circumstances, it could serve to limit some of the opportunistic ECHR-based claims we have seen, and would reflect what we consider to be the right balance between these rights and the law of armed conflict.

I am afraid I must take issue with the noble Baroness, Lady Kennedy, who criticised the idea that we might derogate from the ECHR. This would not, as she certainly implied, put British troops above the law. She stated that international humanitarian law would not be enough to ensure that justice would be done. Our Armed Forces are, at all times, subject to UK service law, which includes the criminal law of England and Wales. International humanitarian law, based on the Geneva Conventions, will still apply in situations of armed conflict and there are some rights that cannot be derogated, such as protection from torture and slavery. The noble Lord, Lord Thomas of Gresford, asked whether any cases involving Iraqi prisoners had been brought by combatants. The answer is no—these cases do not involve the principle of combat immunity. The vast majority result from the ECHR decisions that UK forces did not have the right to detain people suspected of insurgency.

On another point made by the noble Baroness, Lady Kennedy, to deduce from the many millions paid out in compensation that there has been extensive wrongdoing would be wrong. The vast majority of the sums paid out were paid because the European Court of Human Rights decided that the UK had no right to detain dangerous insurgents in Iraq. The court has since significantly altered its position on that point, but we will not be able to recover the money. It is worth adding that Article 4 of the International Covenant on Civil and Political Rights also permits states to derogate from certain rights, providing the conditions as set out are met. I emphasise that, if and when the UK does derogate, care will be taken to ensure that it is wholly consistent with our other international legal obligations, as required by Article 15 of the ECHR.

It is important that I should make one other thing clear, especially in response to the noble Lord, Lord Dannatt. We take seriously our legal and moral duty to investigate credible allegations of criminal offences and to prosecute, where appropriate. I agree with the noble Baroness, Lady Kennedy, that the case of Baha Mousa serves as a reminder that a small number of serious offences were undoubtedly committed. I stress that the overwhelming majority of service personnel deployed on operations conduct themselves to the highest standards and in accordance with the law. The Al-Sweady inquiry, which I mentioned, has demonstrated that some allegations will be exaggerated or even false—the noble Lord, Lord Thomas of Gresford, referred to others in that category.

The noble and learned Lord, Lord Hope, suggested that any derogation should be subject to parliamentary approval. Let me make clear what the process would be. A designation order can be made by the Defence Secretary, which would come into force from the date made. However, under the existing law, a designation order under the Human Rights Act must be subsequently approved by each House of Parliament within 40 days from that date in order to amend the terms of the Human Rights Act. In this context, perhaps I could address a point made by the noble Lord, Lord Bilimoria. It is important to note that, to date, derogations from the ECHR by other states, including the United Kingdom, have been in respect of activities on their own territories. The announcement by the UK to derogate, where appropriate, for armed conflict overseas is, I hope, a clear statement of intent.

The noble and gallant Lord, Lord Craig, and the noble Lord, Lord Dannatt, suggested that we should remove ourselves from the jurisdiction of the International Criminal Court, as the United States has done. I would just point out that the obligation to investigate serious allegations against our Armed Forces is based squarely on UK domestic law. As long as that is done, we have nothing to fear from the International Criminal Court. We should remember that, in the context of the Baha Mousa case, it is not true to say, as the noble Lord, Lord Thomas, did, that the family could not have brought proceedings had it not been for the ECHR. The Baha Mousa family was in fact able to sue the Ministry of Defence under common law. A settlement was eventually reached as a result of mediation.

[Lord Thomas of Gresford]

I did not suggest that. They succeeded in the Supreme Court.

[Earl Howe]

I am grateful to the noble Lord for his comments if I misunderstood him.

The noble and gallant Lord, Lord Richards, asked whether the Government would retrospectively end prosecutions. The Government are extremely reluctant to propose retrospective legislation because it compromises the principle of legal certainty. However, we will seek to ensure that investigations are brought to a close as quickly as possible.

--- Later in debate ---

[Lord Thomas of Gresford]

I certainly did not say that. I said that I could not imagine any case arising that the Ministry of Defence would settle where combat immunity was a defence.

[Earl Howe]

I am grateful. However, to clarify this point, the Challenger case mentioned by the noble Lord turns on training rather than procurement, but the important point here is that no one now knows the extent to which military decisions may be questioned in court. That is the problem the Government must, and will, address. I also suggest that combat immunity is a real problem. We have three major cases progressing through the courts at the moment, and many others are stayed behind them. Therefore, to suggest that this is only a minor issue involving one or two people is incorrect.

The noble and learned Lord, Lord Hope, suggested that the Armed Forces compensation scheme should be made subject to statute. In fact, the scheme covers any claims made since 6 April 2005. It was made part of the Armed Forces Act of that year.

The noble and learned Lord, Lord Brown of Eaton-under-Heywood, suggested that one solution would be to reinstate Section 10 of the Crown Proceedings Act. I am hesitant about that solution. It is one of the options we have been looking at but it would be possible only under certain specific circumstances, and careful consideration would need to be given to the impact on service personnel. Certainly, I agree with the noble and learned Lord that such a step would not be sufficient on its own.

I also want to make it clear that we remain unequivocal in our commitment and duty to look after our Armed Forces and veterans, particularly those who are subject to investigation. What is more, we remain steadfast in our commitment to support those who face legal proceedings. In respect of the Iraq conflict, the IHAT is now making rapid progress towards its expected completion by the end of 2019—a point which Sir David Calvert-Smith affirmed in his recent review of the IHAT. Some 70% of the more than 3,000 allegations received have already been disposed of, the vast majority without the need to interview service personnel or veterans. I say to the noble Lord, Lord Touhig, that we are confident, based in part on Sir David Calvert-Smith’s report, that the IHAT will be able to meet the progress targets it has set. The IHAT’s workforce is comprised of Royal Navy Police and experienced former civilian police officers who are dedicated to conducting their investigations as sensitively and effectively as possible. The noble Lord, Lord Touhig, questioned whether three days was enough training on the conditions in Iraq, and said that perhaps Ministers were not briefed about the proceedings often enough. There is a balance to be struck here. Ministers absolutely respect the IHAT’s independence, but I am sure they will take full account of any recommendations the Commons Defence Committee makes on this matter.

I think the noble and learned Lord, Lord Brown of Eaton-under-Heywood, suggested that we are actively paying Iraqi witnesses to travel to interviews. I make it clear that the IHAT pays only travel and subsistence expenses and loss of earnings. That is essential if the necessary investigations are to proceed.

My noble friend Lord Robathan turned our attention to issues in Northern Ireland, and said very powerfully that something has to be done about prosecutions of veterans in Northern Ireland 30 or 40 years after the event. I very much share my noble friend’s concern that these legacy investigations must recognise that the vast majority of deaths in the Troubles were the direct responsibility of the terrorists. Northern Ireland would not be the peaceful place it is today without the tireless work and many sacrifices made by the Armed Forces.

The noble Lord, Lord Bew, also referred to issues in Northern Ireland, and in particular the soldiers from Bloody Sunday who face prosecutions, whereas the terrorists do not. The noble Lord will recognise that, as a Ministry of Defence Minister, I cannot comment on or influence possible prosecution decisions. I am sure that those who make such decisions will take due note of his words.

I shall of course write to noble Lords whose questions I have not had time to answer today. At the end of a debate of this kind it is right for me to conclude by reiterating my unwavering admiration for our Armed Forces. The job they do, protecting and defending our freedom, security and prosperity in often difficult and challenging circumstances, is second to none. In this spirit the Government are seeking to move forward and deliver their manifesto commitment to ensure that our Armed Forces are able to do their job effectively, safe in the knowledge that they have our full and unstinting support, and confident in our ability and intent to protect their freedoms when they return home.

British Servicemen: Vexatious Law Suits

Debate between Earl Howe and Lord Thomas of Gresford

Wednesday 19th October 2016 Lords Chamber

[Earl Howe]

As regards combat immunity, the Government have previously made it clear that we will not rule out legislating, which is being considered among a range of options. It has been suggested that we should simply reinstate Section 10 of the Crown Proceedings Act; that is one of the options we are looking at, but it would be possible only under certain specific circumstances. No plans are in train for any immediate change on that front.

[Lord Thomas of Gresford (LD)]

My Lords, I have professional experience of fraudulent claims and of legitimate claims like the Baha Mousa case, where the deceased received 95 injuries before he died. I note that the Ministry of Defence has settled 326 claims at a cost of £32 million; I assume that those were legitimate claims. Do the Government now intend to abolish or prevent all claims being brought by prisoners or civilians who are injured in the course of operations, regardless of whether they are legitimate or vexatious?

[Earl Howe]

As the noble Lord is aware, the Iraq Historic Allegations Team looks into these allegations, which have totalled more than 3,300 to date. The current case load is around 1,600 and it expects to reduce that number to 250 by next January. We cannot simply close it down, because that would mean leaving these allegations open to referral to the International Criminal Court in The Hague, with the possibility of trials there. We must therefore investigate properly in this country.

Armed Forces Bill

Debate between Earl Howe and Lord Thomas of Gresford

Wednesday 27th April 2016 Lords Chamber

[Earl Howe]

The noble Lord makes a very important point. This is certainly one of the factors that will need to be looked at in detail. If there is justification for changing the system, we will need to look at all the reasons that have been advanced for such changes. I agree with the noble Lord that we need to get to the bottom of whether there is a lack of public confidence in the way the system currently works. I can undertake that that will be part of the scrutiny we will conduct.

[Lord Thomas of Gresford]

My Lords, on that point, I gave a whole series of instances in Committee, which I have not repeated this evening. Let me give just two. I was involved in the Baha Mousa case, and as a result of the acquittals the Government set up an inquiry that lasted three years and took a lot of evidence, at great cost, in order to find out what went wrong.

I happen to have a room overlooking Old Palace Yard, and I hear every demonstration that takes place outside. During the Sergeant Blackman case, there were demonstrations in Old Palace Yard by serving as well as retired military people. I have never come across such a public demonstration against the result of a trial, even in very controversial cases. In Committee, I cited the case during the miners’ strike involving the murder of a taxi driver with a concrete block, in which I prosecuted. There was no public demonstration after that; but there seems to be a public demonstration after every controversial military decision. That includes newspapers beyond the Daily Mail, which of course carried out—and is carrying out—a campaign in the Blackman case.

The argument that the system is for the maintenance of discipline, and that we should have courts martial for that purpose, was the argument used in 1926 in the debate, to which I referred, to try to retain capital punishment for cowardice. The same arguments were advanced—that if you do not have the death penalty hanging over you, you will never go over the top or face military confrontation.

The noble and learned Lord, Lord Hope, referred to the Scottish system and the fact that there are no retrials. Personally, I think it is an argument for another day to weigh whether a not proven verdict is more satisfactory than having a retrial. To my mind, a not proven verdict leaves individual defendants in limbo.

Having made those comments, I welcome the fact that the Government are prepared to carry out a review of the current arrangements, and I shall await its results with considerable interest and anxiety. In my view, something has to be done. I have personal experience of courts martial and what happens as a result of them.

On sentencing, I would not be arguing the point if we were concerned only with service discipline, such as absent without leave charges, desertion or even mutiny. The trouble is that Section 42 of the 2006 Act brings into the purview of courts martial murder, manslaughter and rape—the most serious cases imaginable. To my mind, it is wrong that there should be a divergence from the rest of society in the way that a small but important group are tried and treated, particularly given that there are groups in the rest of society that require precisely the same discipline as the Armed Forces. However, I do not propose to pursue these matters to a vote, and I beg leave to withdraw the amendment.

Armed Forces Bill

Debate between Earl Howe and Lord Thomas of Gresford

Thursday 3rd March 2016 Grand Committee

[Lord Thomas of Gresford]

Perhaps it could be used as a criminal law concept. Perhaps the lawyers would like to think about it. I follow what the noble and learned Lord says on that.

[The Minister of State, Ministry of Defence (Earl Howe) (Con)]

My Lords, this amendment would introduce a time bar on bringing prosecutions against members of the Armed Forces, shielding them from prosecution for their actions while engaged in military operations outside the United Kingdom. The time bar would apply to their acts where more than 20 years had passed since those acts took place.

It is important to be clear, as noble Lords have observed, that the amendment would prevent personnel being prosecuted under either the service justice system or the civilian criminal justice system. It would cover all offences, not only against civilians or prisoners of war but against members of our own Armed Forces; for example, if evidence eventually came to light that a soldier had murdered another soldier while on operations, there could not be a trial if more than 20 years had passed.

I have much sympathy with the reasons that I know underlie the amendment. If criminal allegations are raised many years after the events in question, witnesses may be dead, memories may have faded and documentary evidence may have been lost. Indeed, those difficulties can be encountered even after a few years, never mind many years. However, I was grateful for the comments of the noble Lords, Lord Tunnicliffe and Lord Thomas of Gresford, and the two noble and learned Lords, among others. Members of our Armed Forces engaged in military operations must be subject to the rule of law and I cannot support a blanket ban on prosecutions of members of the Armed Forces after a stated period.

As the Committee is aware, the Armed Forces Act 2006 contains a system of service law that applies to members of the Armed Forces wherever in the world they are operating. This makes provision that a member of the Armed Forces commits a service offence if he or she commits any act overseas which would be an offence under the law of England and Wales were it done here. I am afraid I cannot see on what principle we should make an exception from the criminal law for those in military service overseas.

It is worth emphasising that, in both the civilian and service justice systems, when considering any case prosecutors are required to consider not only whether there is sufficient evidence to provide a realistic prospect of conviction but whether a prosecution is in the public interest. It has never been the rule that a prosecution will automatically take place once the evidential stage is met. Similarly, in the service system prosecutors are required to consider whether a prosecution is also in the service interest, including service interest factors. Clearly, if the offence is more serious, the public interest for a prosecution is more compelling.

It should also be noted that before a former member of the Armed Forces can be prosecuted for a criminal conduct service offence in respect of things that they did during their service, the consent of the Attorney-General must be obtained if more than six months have passed since they left the Armed Forces.

I am of course aware of the concerns expressed by the noble and gallant Lord over investigations by the service police of events in Iraq many years after those alleged events. In many of these cases, the allegations were not made immediately—for reasons which are not always clear. I assure the noble and gallant Lord, and the Committee, that intensive efforts are being made to bring these investigations to a conclusion as soon as possible. We are investing considerable resources in this area. We are looking at streamlined processes to ensure that those cases without substance are weeded out quickly, and so on. The Iraq Historic Allegations Team is doing an excellent job given the difficulties it faces. It has completed a number of investigations.

I do not believe for a moment that this process will still be in progress when the 20-year limit envisaged by the new clause would be reached. Indeed, the only theatre in which, so far as I am aware, criminal investigations or prosecutions of soldiers or veterans are in progress relating to events from more than 20 years ago is Northern Ireland, which is excluded from the scope of this clause because it covers only operations outside the UK.

I also assure the Committee that, while the Ministry of Defence will discharge its duty to provide any information in its possession relevant to such police investigations, it will also provide effective support, legal and pastoral, to veterans who may find themselves facing investigation for matters related to their duties. Although, I repeat, I sympathise with the concerns behind the new clause, in principle it would be wrong to provide an exception to the criminal law for members of the Armed Forces serving overseas in this way. On that basis, I hope that the noble and gallant Lord will agree to withdraw his amendment.

Armed Forces Bill

Debate between Earl Howe and Lord Thomas of Gresford

Tuesday 1st March 2016 Grand Committee

[Lord Thomas of Gresford]

My Lords, I am moved to join in this debate by the recitation by the noble Baroness, Lady Gould, of the figures for the past few years, which amount to hundreds. I should tell the Committee that in the investigation I was involved with in Washington in America, to the best of my recollection it was estimated that 32,000 sexual offences were committed in the United States armed forces, regarding which there were 5,000 complaints and prosecutions brought in the hundreds, with convictions a lower figure. It was a matter of very high political concern. There is a campaign regarding this by Senator Gillibrand, the junior senator for New York, assisted by Mr Ted Cruz, who has achieved some notoriety lately. So there are a Democrat and an ultra-right-winger and others all involved in dealing with this dreadful problem that they are facing. The issue really is the role of the CO in sexual offences, the very issue that Amendment 6 raises. I strongly urge it upon the Minister that sexual offences should be taken out of the purview of the CO altogether.

[Earl Howe]

My Lords, I understand the concerns which underlie these amendments. However, the case that I shall put to the Committee will show that I am not convinced that it is necessary or appropriate to make changes. The first amendment in this group would create a legal obligation to publish data about allegations of sexual offences. It would impose an obligation which, it is worth saying, is not currently imposed on other civilian authorities, although they do publish such information on a regular basis.

It may be helpful if I briefly set out the existing arrangements within the service justice system for the collection and publication of crime statistics. The Service Police Crime Bureau records, for all three services, allegations of rape and sexual assault that are made to the service police. That information is released regularly in response to Parliamentary Questions and freedom of information requests. In the case of the latter, the information is uploaded to the MoD’s online publication scheme where it can be freely accessed. Noble Lords have said that they do not regard that in itself as sufficient, but let me continue as there is more to say on this.

The noble Baroness, Lady Gould, said that the system of recording offences needs to be made more robust. In an effort to improve our recording of crime, the Service Police Crime Bureau has been liaising with the Home Office police forces to analyse their crime-recording practices and rules. I am pleased to say that, as a result, the bureau is to establish a post of crime registrar, similar to that found in Home Office police forces, with a remit to scrutinise and audit the recording of crimes on the service police investigation management system. That will undoubtedly improve the accuracy and consistency of the information and, in due course, lead to the production of useful management information about patterns and trends. I very much agree with the argument that it is highly desirable to have an accurate picture of the extent of sexual offending.

My noble friend Lord Attlee asked whether the service police are recording every case referred to them. I will reflect on that issue but, in doing so, I suggest that we need to bear in mind that an unproven complaint should not blight a person’s career. This is a very sensitive issue and it is one on which I suggest that we must be very careful.

Armed Forces Bill

Debate between Earl Howe and Lord Thomas of Gresford

Thursday 11th February 2016 Lords Chamber

[Earl Howe]

These are matters currently under scrutiny. The firms that the noble Lord mentioned are, I understand, being quizzed by the regulatory authority for the solicitors’ profession. I am not aware of the outcome of those proceedings, but the noble Lord is right to pinpoint the issue of the way in which those firms received their instructions in the first place. That is a matter that we are as keen to get to the bottom of as he is.

[Lord Thomas of Gresford]

Can the Minister update us on the International Criminal Court preliminary examination? Where are we with that?

[Earl Howe]

I fear that I cannot. I will need to write to the noble Lord about that and I will be happy to do so.

I extend thanks, briefly, to the noble and learned Lord, Lord Brown of Eaton-under-Heywood, for his contribution. I will not attempt to answer all the points he made, but I reassure the House again that these issues are under active consideration with the MoD and very recently, as I am sure the noble Lord, Lord Bilimoria, will be pleased to know, by the National Security Council.

My noble friend Lord Freeman was concerned that service personnel overseas might be subject to the criminal law of the host nation. We take steps to ensure that, before members of the Armed Forces are deployed overseas, arrangements are made with the host nations to ensure that the conduct of those forces in the course of their duties will not be subject to criminal proceedings under the criminal justice system of the host nation. Allegations of criminal misconduct will be dealt with under UK law, under the system established by the Armed Forces Act 2006.

The noble Baroness, Lady Taylor of Bolton, spoke of the need to do more about publicising data on sexual offences. While we are not yet convinced that it is necessary or appropriate to set out requirements in legislation for the publication of this data, the department is determined to make the data that we publish robust, consistent and accessible. To that end, we are actively considering how best to publish the data as an official statistic. The Service Police Crime Bureau records, for all three services, allegations of rape and sexual assault made to the service police. This information is released regularly in response to Parliamentary Questions and FOI requests. In the case of the latter, the information is uploaded to the MoD’s online publication scheme, where it can be freely accessed.

The Service Prosecuting Authority records, for each year, the number of cases referred to it, the number of cases in which charges are preferred and the number of cases where a conviction is secured. The Military Court Service regularly publishes, on the internet, details of every case heard at the court martial, including offences, outcomes and punishments. There is, therefore, a clear picture of the extent of this type of offending within the services, giving a strong indication of the proportion of case referred from the service police to the Service Prosecuting Authority which were prosecuted, and the conviction rate in such cases.

The noble Lord, Lord Touhig, also touched on the subject of sexual offences. It hardly requires me to emphasise—but I will—that sexual assault is unacceptable, in wider society or within the Armed Forces. At present, a whole range of allegations covering most sexual offences must be reported to the service police by the commanding officer. They can also be reported by the victim direct to the service police and, of course, the service police can investigate on their own initiative, but there are some, such as sexual assault, which are referred back, at least initially, to the CO. The Bill changes that. Where the service police have investigated any sexual offence and there is sufficient evidence to charge, the service police will be required to refer the case direct to the Service Prosecuting Authority. That is provided for in Clause 3. I will be happy to write to the noble Lord with further details around some of the questions he asked on this.

The noble Lord, Lord Thomas, took us to the whole system of courts martial and the service justice system. I should explain, in answer to the broad thrust of his question, that there is already a prosecutors protocol in place between the Director of Public Prosecutions, the Director of Service Prosecutions and the Defence Secretary which sets out the principles to be applied in determining where a case is best dealt with if the conduct occurred in circumstance such that both the civilian criminal justice system and the service justice system have jurisdiction to deal with the case. The protocol recognises that any offence can be dealt with by the service authorities.

The main principle in deciding whether it is the service authorities or the civilian authorities which acts is whether the offence has any civilian context, especially a civilian victim. If it does have a civilian context, it will almost certainly be the civilian police, prosecuting authority and courts which deal with the case. Under the protocol, many cases involving service personnel are dealt with by the civilian police. The service police are able to investigate, but if the circumstances are such that it is considered more appropriate for the civilian police to do so, then they will take the lead. We expect the prosecutors protocol to continue to apply even after the draw-down of forces from Germany, so that cases will continue to be dealt with in the appropriate jurisdiction from the outset.

Of course, we must not lose sight of the fact that the UK civilian police do not have jurisdiction overseas, and as long as the Armed Forces have an overseas role we will need to have a justice system which is capable of functioning extraterritorially and which supports the operational effectiveness of the services. The noble Lord also asked—

[Lord Thomas of Gresford]

The noble Earl will know that murder is under universal jurisdiction. Do I take it that murder cases arising out of the IHAT investigations, for example, will be referred to the civil court or to courts martial in this country?

[Earl Howe]

My Lords, as I said, there is a protocol which lays down pretty clear guidelines as to how individual cases are handled. I do not think I can give a blanket answer to the noble Lord; it will depend on the circumstances of the case.

He raised other points, including the composition of courts martial and majority verdicts—a theme also pursued by the noble Lord, Lord Burnett. The proposal to change the current rules under which findings of guilt or innocence may be by simple majority would involve profound changes to the court martial system. The court martial may sit in the United Kingdom or anywhere in the world in times of peace or in conflict. Court martial trials may be decided, as in a magistrates’ court, by a small panel, usually of three officers and warrant officers, but a panel of five is required in more serious cases. A service defendant will ordinarily be tried by lay members wholly of his own service. The composition of the panel is determined by the court administration officer who is appointed by the defence counsel. The CAO will draw names at random from a pool of potential members and, having checked that they are eligible for membership of the particular board, will specify who the lay members should be. I would like to write further to both noble Lords to flesh out this whole issue but the great advantage of reaching a decision by majority is that it avoids a hung jury and there is no need for a retrial in the event of a lack of unanimity or qualified majority. As the noble Lords will know, this is a long-established process.

The noble Lords, Lord West and Lord Empey, the noble Baronesses, Lady Taylor, and Lady Jolly, and others raised the issue of mesothelioma. The background to this was the announcement by my honourable friend the Minister for Defence Personnel and Veterans in December that veterans diagnosed with mesothelioma from that date would have the option to receive a £140,000 lump sum, to be paid from 11 April this year. I simply say that the Government understand the concerns that have been voiced in this debate and I can tell the House that work is actively continuing on the matter of those diagnosed before 16 December last year. While I cannot discuss that issue any further today, we hope to be in a position to say something soon.

The right reverend Prelate the Bishop of Portsmouth, my noble friend—

Syria: Brimstone Missiles

Debate between Earl Howe and Lord Thomas of Gresford

Wednesday 3rd February 2016 Lords Chamber

[Lord Thomas of Gresford]

To ask Her Majesty’s Government what is their assessment of the effectiveness to date of the RAF’s Brimstone missiles in bombing Syria, and in particular in protecting the civilian population.

[The Minister of State, Ministry of Defence (Earl Howe)]

My Lords, the Brimstone missile offers the coalition a capability to strike moving targets accurately, with minimal risk of collateral damage. Between 2 December 2015 and 31 January 2016, RAF Brimstone missiles were used successfully on nine occasions in Syria to strike enemy vehicles. There have been no associated reports of civilian casualties and it is assessed that all targets were successfully destroyed or damaged.

[Lord Thomas of Gresford (LD)]

Yes, I think that the kill so far has been two trucks and five mobile cranes. Does it really matter what type of bomb or which of the coalition partners drop it? It has been reported that some 40 civilians or more were killed in January and in the first two days of this week. Surely we are involved in a joint enterprise and, by long-standing principles of English law, we are all of us legally and morally responsible for the lives of those who are killed—innocent civilians, innocent men, women and children—by these bombs. What comment would the Minister have?

[Earl Howe]

So far as we are concerned, as a member of the coalition, we take the possibility and risk of civilian casualties extremely seriously. As I said in my initial Answer, to date there is no evidence that UK strikes have resulted in civilian casualties. Three factors underpin that: our use of precision guided weapons; our adherence to very strict targeting and planning protocols; and, above all, the skill of our pilots and air crew. I think that it does make a difference whether it is the RAF or another air force taking part.