Iraq Historic Allegations Team

Gerald Howarth Excerpts

Wednesday 27th January 2016 Westminster Hall

[Richard Benyon]

Most of the asymmetric conflicts that we have fought in recent years are extremely difficult. We are fighting an enemy who does not sign up to the Geneva convention and the basic rules of war. I will make suggestions for the Minister that I think might address those concerns. My hon. Friend is, as always, absolutely right.

My hon. Friend the Member for Tonbridge and Malling (Tom Tugendhat) co-wrote a landmark report last year called, “Clearing the Fog of Law”. I recommend it to hon. Members. In it he makes some recommendations that are intellectually researched and will go a long way to address the problem that we discuss today. I am also grateful for any contribution to the debate from my hon. Friend the Member for Banbury (Victoria Prentis) whose understanding of these issues within the machinery of Government is second to none.

My right hon. Friend the Member for Mid Sussex (Sir Nicholas Soames), who has asked me to say he is sorry he cannot be here as he is in hospital, wrote a powerful article last week in which he described an action in which a sniper shot and killed an insurgent who was about to fire an RPG-7 round towards troops. The shot was made from 1,200 metres—an act of skill that is hard to imagine. However, in absolutist terms, it could be that this fatality was illegal as the sniper did not issue a verbal warning. To give such a warning in a language that an assailant can understand over that distance is clearly a ridiculous concept, even before you try to second-guess the thoughts racing through the sniper’s mind as he balanced the rules of engagement with the safety of his mates. I think he did the right thing. Now we are led to believe that he is being investigated because a firm of lawyers—sitting, no doubt, in the comfort of offices in London or Birmingham—have realised that there is money to be made here. The lawyers have tracked down the deceased’s family, who have no doubt been told of the riches available on a no win, no fee basis or possibly from legal aid. This has to stop.

The Iraq Historic Allegations Team was being set up in the last days of the previous Labour Government. It was put into operation by the coalition Government for a perfectly respectable reason, and no doubt also to offset some of the threats from international judicial processes, to tackle alleged crimes in that conflict.

[Sir Gerald Howarth (Aldershot) (Con)]

My hon. Friend is making a powerful case. I was an opponent of the International Criminal Court Bill that was proposed by the Labour Government and would have subjected our soldiers to the International Criminal Court. I said at the time that

“we must foresee the possibility of the court saying that this country has been unwilling to take action although we believe that it would be inappropriate for our national courts to do so. In such circumstances we must provide maximum protection to our troops.”—[Official Report, Standing Committee D, 1 May 2001; c. 247-48.]

Is it not the case that the Government introduced this because it feared that otherwise our troops would have been taken to the International Criminal Court?

[Richard Benyon]

I find it depressing that we are talking about this so long after my right hon. Friend made those remarks. It will be interesting to hear from the Minister what advice she has received about the need for the Iraq Historic Allegations Team. Perhaps the debate will be able to draw out some of the reasoning for it.

As we know, IHAT was set up in 2010 by the then Minister, Sir Nick Harvey, who in a written statement said that he expected it to complete its work within two years. In July 2014, the Secretary of State recognised that IHAT’s work was not going to be completed by the end of 2016. He approved additional funding of £24 million to cover the period from the end of 2016 to the end of 2019, which increased the level of funding of IHAT to £57.2 million. I want us to think of 2019 in relation to when some of the instances it is investigating actually took place.

IHAT employs 145 people and is still recruiting. The job specs actually say that contracts are initially short term, but are likely to be extended for significantly longer. The IHAT website gives 2019 as the likely date when it will complete its work. If it was exposing systematic and institutionalised war crimes, I would at least understand why such persistence was a good idea, and feel that the cost to the British taxpayer was justified. Estimates in the press say it costs £5 million a year, but other estimates vary. A look at IHAT’s website shows that 18 investigations have been completed, one of which has resulted in measures being taken against somebody, and a £3,000 fine being awarded. Of the others, 15 cases have been dropped and two cases have been passed to other authorities, but no action has been forthcoming.

By June last year, following a huge increase in IHAT’s caseload, the diagnosis was even worse. It is not necessary to be a mathematician to appreciate that, at this rate, the task of investigating allegations arising from the activities of British armed forces in Iraq will never be fully completed. The Ministry of Defence guide describes what has happened to the 59 allegations of unlawful killing that IHAT has reviewed up to this month: 34 cases have been closed, or are in the process of being closed, with no further disciplinary action; seven are currently subject to further limited, focused lines of inquiry; and 17 are under investigation. Only one of those cases was referred to the Director of Prosecutions, who directed that there should be no prosecution. So, on the face of it, that is not a great record.

At this stage, I want to make it clear that I do not blame the Iraq Historic Allegations Team. It no doubt has worthy detectives sifting the evidence, but after 10 years it is finding two things: evidential trails have run cold; and it is being inundated with claims, many spurious and many the result of the malign actions of lawyers, who see this is a Klondike-style fee-fest or, perhaps, as a way to get at the system that conducted what they believe to be an unjust war. If anyone doubts my last remark, I suggest looking at the interview on YouTube given by Mr Phil Shiner of Public Interest Lawyers to that great beacon of impartiality, Russia Today.

IHAT’s caseload now involves just over 1,500 alleged victims, 1,235 of whom are victims of ill treatment and 280 of unlawful killing. Given that backlog, the burden will hang over the heads of many of our veterans for many more months and probably years. That is utterly intolerable.

All that falls into the concept of what “Clearing the Fog of Law” calls “legal imperialism”. The worst case of such a culture are the allegations that culminated in the al-Sweady inquiry. The allegations surround actions taken during what became known as the battle for Danny Boy, a brutal attack on a checkpoint of that name resulting in a fierce firefight. British troops showed exceptional courage and resolve, and a number were decorated for bravery. The inquiry that followed cost £31 million; the fees were about £5 million. Some mistreatment was discovered, but the allegations of torture, mutilation and murder were baseless and the product, according to the judge, of “deliberate and calculated lies”.

The Government and many others have accused the two firms promoting the cases, Public Interest Lawyers and Leigh Day, of attempting “to traduce” the reputations of the Army units concerned. We have heard that the alleged actions of one of the law firms, Leigh Day, have resulted in referral to the Solicitors Regulation Authority. I hear that Public Interest Lawyers might also be referred to that body.

We could all take up lots of time venting our collective spleen at the behaviour of firms that trawl places such as Basra trying to convince people of the great riches in proving that they were victims of bad behaviour. We could take up much more time asking the shadow Defence Secretary, the hon. Member for Islington South and Finsbury (Emily Thornberry), why she and the Labour party thought it right to accept donations or donations in kind from those firms.

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[Sir Gerald Howarth (Aldershot) (Con)]

I congratulate my hon. and gallant Friend the Member for Newbury (Richard Benyon) on bringing forward this important debate, and I also congratulate my hon. Friends who have taken part in it. The debate demonstrates the strength of feeling in the House that our armed forces are not being well served by the campaign of what is known as lawfare, rather than warfare.

Our armed forces go and fight and do their best in the most difficult of circumstances. A number of my hon. and gallant Friends have been out in theatre. I have been to Afghanistan six times, so I know what it is like. I fear that by putting our armed forces into harm’s way in this fashion, we are undermining their morale and thereby threatening the war-fighting capability of the next generation of those who will be called upon to serve their country. I believe we are doing them a disservice.

The Prime Minister is absolutely right to express his concern about this matter. The Government need to do more; we owe it to the 120,000 troops who have served in Iraq in Her Majesty’s armed forces. We cannot have a situation where men and women go out to fight in the most appalling of circumstances, dealing with an enemy that they sometimes cannot distinguish from the civilian population. They do their level best and then come back—many of them suffering injuries and some of them traumatised—and may have to wait years before finding out that they might face prosecution from their own fellow civilians. That cannot be right.

I have constituents in Aldershot, the home of the British Army, who served with distinction in Northern Ireland. They still, 43 years on from Londonderry in 1972, face the possibility of prosecution. That is not right. It is not in the interests of natural justice that our men and women who serve our country should be treated in that fashion.