Fatalities in Northern Ireland and British Military Personnel

Julian Lewis Excerpts

Thursday 25th January 2018 Westminster Hall

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

I beg to move,

That this House has considered the Seventh Report of the Defence Committee, Investigations into fatalities in Northern Ireland involving British military personnel, Session 2016-17, HC 1064, and the Government response, HC 549.

It is a pleasure to introduce today’s important debate under your chairmanship, Sir David. My interest in the topic was first sparked by contributions made at an end-of-term debate by my hon. and gallant Friends the Members for Beckenham (Bob Stewart) and for Filton and Bradley Stoke (Jack Lopresti), both of whom are here today, although sadly one of them, as a Parliamentary Private Secretary, cannot contribute personally to the debate.

When the Defence Committee agreed to look into this question, we delved into it very much from the point of view of what was technically possible, and what was impossible for reasons of international law. From the beginning of the troubles in 1969 to the signing of the Good Friday agreement, there were 3,260 troubles-related deaths. Of those, 238 were the result of engagements by military personnel.

The Committee was particularly exercised by recent events. As a result of the much more recent campaign in Iraq, soldiers were being brought to court, and it appeared that thousands of cases would have to be investigated, despite the fact that at the end of long, tortuous and expensive processes, the vast majority were found to be without much, or indeed any, substance. The Committee was worried that a similar sort of process would now begin retrospectively in relation to the 238 military-related deaths that occurred during the troubles.

In the course of our inquiry, we took the advice of a panel of four distinguished lawyers who gave evidence. I drew a number of lessons from what they had to say. They told us that it would be possible to draw a line under the events of such a long period so long ago, if that was what was decided, but they assured us that it would not be possible under international law to do so in a selective fashion. They were quite clear that two conditions would have to be met if we wished to bring in, as the Committee felt that we should, a statute of limitations concerning troubles-related deaths up to the date of the Belfast agreement. I have already alluded to the first condition, which is that the statute of limitations should apply to everybody. The second condition, which is a requirement under international law, is that there must be a proper investigative process for deaths that have occurred, even though that may not lead—indeed, if there were a statute of limitations, definitely would not lead—to a prosecution.

I started to discuss the matter with various interested parties. The Democratic Unionists with whom I discussed it certainly want a statute of limitations applying to the military forces, the police and the security agencies, but they have grave difficulty with applying such a statute to former republican paramilitaries. Only yesterday, for the first time, I was given the opportunity to have a discussion, which I welcomed, with three of the Sinn Féin elected MPs. I think it is true to say that they were interested in something that already seems to apply to republican paramilitaries, but they were not interested in something that would apply to the military, the police or the security agencies. There is also a certain lack of clarity, to put it mildly, about the present policy. As we discovered in our discussions yesterday, there is even failure to agree on whether existing limitations on the sentences that can be given to convicted paramilitaries apply to service personnel as well.

What are the existing restrictions? I think we know what they are. As part of the agreements that have been reached after so many years, so many negotiations, so much death, so much tragedy and so much trouble, it was agreed that no matter how great the offence or how numerous the victims, if paramilitaries were convicted under the terms of the agreement, whether they had killed dozens, scores or even just a few individuals, they could not be sentenced to more than two years in prison. The likelihood, therefore, is that they would not serve more than one year in prison.

There seemed, however, to be no agreement on whether that restriction applies to the military. I do not know if the Minister will be able to enlighten us today; if not, I hope that he will write to us with a definitive answer. The Sinn Féin MPs definitely thought that it did, yet previously I had it explicitly put to me by a lawyer for one of the service personnel currently facing trial that the two-year maximum, no matter how heinous the offence for which a republican or presumably any other paramilitary is sentenced, did not apply to the military. If it does not apply to the military, the imbalance between the unlimited sentences that can be imposed on soldiers and the two-year sentences—one year actually served in jail—that can be imposed on paramilitaries is so egregious that it is hard to imagine that the Government would not seek to impose at the very least a cap for all who may be affected by any proceedings. However, I want to try to take a wider view, and I appeal to all who were involved, one way or another, in the tragedy that was the troubles of Northern Ireland to try to take the broader view, too.

It has been put to me in very stark terms that people who suffered losses during that period, even if it was only 40 years ago, cannot rest until those matters are resolved. I share their understanding of the matter, and can perceive something of what they feel, because my family was caught up in the holocaust, and the part of my family who were still in Poland in the second world war was annihilated, with the exception of one very small family unit that was saved by courageous non-Jewish Poles. Even though it happened a few years before I was born, I felt for years after the war that the people who killed them should be hounded forever, yet that is not the situation that we face today, because we have already decided that—in the interests of an overall settlement—there should be a limit of two years on the maximum sentence that paramilitaries can face, so by no stretch of the imagination can the punishment be said to fit the crime.

I come to the second element of what the distinguished professors told the Committee in their advice to us on what would and would not be possible under international law. Any statute of limitations would not only have to apply for everybody—because if it were applied only to the forces of the state, that would legislate for state impunity, which is illegal under international law—but would also have to be coupled with a truth recovery process.

We all know where we first began to hear about truth recovery processes: in South Africa, after Nelson Mandela came out of prison and changes occurred. The decision was taken in South Africa to draw a final line under all the horrors on whichever side, or by whatever part, whether we are talking about state authorities, revolutionaries or innocent civilians caught up in someone else’s crossfire. There, it was decided that in the interests of peace and coherence and the possibility of building some sort of united community, a line must be drawn, but that families must have closure and the best possible opportunity to find out what had happened to their loved ones. That led to people who had been involved in terrible activities coming forward and giving testimony, secure in the knowledge that, even if they were incriminating themselves, they would not be prosecuted. That is how there was some form of resolution for those people who had been bereaved, in the sense of public accountability and the discovery of the truth. It was not only a brilliant and magnanimous concept, but a legal requirement. There is a legal requirement to investigate; there is not a legal requirement to prosecute.

The trouble in the situation in Northern Ireland—I hope I will not strike the wrong note by seeming to be flippant at this point—goes back to the origins of the troubles in 1969. I went to university the following year, 1970, and while I was at university in Oxford, I made a friend called Martin Sieff. Members might deduce from his surname that he has the same sort of background as I do. I remember him trying to explain to me the depth of division between the communities in Northern Ireland. He said, “For example, there was one occasion when I found myself cornered by a gang on the street. They asked me that age-old question: are you a Protestant or a Catholic?” Martin thought he had the perfect, truthful answer; he said, “I am a Jew.” They said, “Yes, but are you a Protestant Jew or a Catholic Jew?” I am not trying to be flippant; I am trying to indicate that there are irreconcilable and deep-seated beliefs at work here.

The role of the Defence Committee means that our concern has to be for the welfare of the service personnel. We do not wish to see hundreds of old cases reopened, in the absence of any new evidence, which would mean that they were highly unlikely to be successfully brought to a conclusion—if a conviction is regarded as successful. People would nevertheless be put through a tremendous ordeal at a late stage of their life. At the end of it all, in the vast majority of cases, it would almost certainly be found that they did nothing more than their duty and did not commit any offence at all. The Committee’s concern in the report had to be to make a recommendation about what should happen to those personnel. We were unanimous in our belief that a statute of limitations should be enacted for any troubles-related offences, or alleged offences, up to the date of the Good Friday agreement.

We felt that it is for the Government of the day to go wider and decide what other groups beside service personnel and associated police and agencies ought to be included, but we did not shy away from pointing out that the unanimous expert legal advice we received from the four professors made it quite clear that if a statute of limitations were introduced for anyone, it had to be introduced for everyone. That will be very difficult to accept for the different parties across that terrible divide in Northern Ireland that we are seeking to repair. The Unionists take the view that some people should benefit from a statute of limitations, but not others. The republicans take the view that others should benefit from a statute of limitations, but not the people whom the Unionists wish to see benefit.

I will go as far as I can without breaking any personal confidences, and it may be that I am misinterpreting the signals, but from my conversations with people on either side of the argument, I sometimes get the impression that they are held captive by the response they feel they have to make to the people who elected them and brought them to this House. I sometimes detect—perhaps I am wrong; perhaps I am misreading the signals—that, in their heart of hearts, they know that there is either going to be a solution that applies to everyone, or no real solution that applies to anyone, but they will never be able to articulate or promote that.

It is a step forward that the Government have said that they will hold a consultation in which a statute of limitations will be one of the options aired. I believe that sometimes people must seize the opportunity to take a lead. There is nothing of a legal nature to prevent this Parliament from enacting a statute of limitations. If it applies to everyone and is coupled with a truth recovery process, it will maximise the chance of people finding out what happened to their loved ones and of avoiding the poisoning of the settlement so far reached by a constant succession of cases being brought before the criminal courts.

I wish to end on another factor, which I hope the Minister will take back to his colleagues in the Northern Ireland Office. I was particularly impressed by it in the meeting I had yesterday with two Labour colleagues, in which I met the Sinn Féin MPs. From their point of view, it seemed to me—I hope I am not misrepresenting what they said—that one particular ongoing issue was the failure to hold inquests into the deaths of many of the people who died during the troubles.

If we could set to one side, as a route of trying to get to the truth, dragging a succession of old men through the courts when there is insufficient evidence against them, and if as part of an overall settlement we could all decide to go ahead with a statute of limitations that applied to everybody, that might open up the possibility of inquests being held. A combination of inquests being held into deaths that have so far not had inquests, and a truth recovery process in which people know they can come forward to say what happened without any danger of incriminating themselves, might be the basis of a step forward.

Today’s debate is only one piece in an enormous jigsaw that people have been trying to put together to come to a conclusion that enables the communities in Northern Ireland to live at peace with each other, and that—as far as we are concerned—ensures that soldiers who did their duty are not hauled through the courts many years after the event, when no new evidence is available. I hope that people do not have too great an expectation that the production of an individual report or the holding of an individual debate will do anything other than add to the momentum.

One thing that the Defence Committee can claim, however, is that we have focused attention on one specific remedy that offers a way forward. If it was a way forward with no disadvantages, of course people would have signed up to it or something similar long ago. There are disadvantages to every policy possible, and people will have to make sacrifices. People do make sacrifices, and have made them. The question is: is it better to go down the route of endless court hearings, deepening divisions and the poisoning of the more positive links that have slowly and gradually built up, or is it better to take a leaf out of the South African book?

I conclude with this thought: if it was good enough for Nelson Mandela, after all he went through and all that the people he represented went through, should it not be good enough for us and the Northern Ireland communities?

--- Later in debate ---

[Dr Julian Lewis]

It only remains for me to express my gratitude to everyone who has taken part in the debate. I hope that any onlookers will realise and accept that we are dealing with the most difficult of issues, and are trying to do everything that decent people with good intentions can do to arrive at a fair conclusion.

I am grateful to those who have spoken today. I am grateful to colleagues such as my hon. Friend the Member for North Wiltshire (James Gray) and my right hon. Friend the Member for Newbury (Richard Benyon), who have been highly active in this field in the past but could not be here today, for writing in support. I am grateful to the Minister, not least for making crystal clear that the sentencing Act does indeed apply equally to the military and to terrorists going on trial.

That said, it remains absolutely unacceptable that service personnel will have to go through the sort of ordeal that Dennis Hutchings is going through. It seems to me that there are only two ways to prevent that: getting rid of the international law that requires such matters to be investigated in the way that it does, and having a statute of limitations. The international law, namely the Human Rights Act, says that if we have a statute of limitations, it must apply to everyone. I see my good friend the hon. Member for Belfast East (Gavin Robinson) dissenting from that proposition, but that is the testimony that we were given by legal experts. If there is a way in which we can do what the report does—that is, support a statute of limitations for service personnel and analogous organisations, such as the police and the security agencies—without incurring a breach of international law, I would like to know what it is, because the evidence that we were given was that we could not.

[Gavin Robinson]

I realise that it is probably improper for me to start a new debate during a concluding speech, but it depends on whether there has been an article 2-compliant investigation or not. If there has not been, the right hon. Gentleman is right; but where there has been, the option of a statute of limitations is open.

[Dr Lewis]

As I say, we sought advice, and the advice we got was that a statute of limitations can be brought in, but there has to be—or have been, as the hon. Gentleman says—an investigation. There has not always been such an investigation, so unless or until we can bring in such a statute, or can get out of the provisions of the Human Rights Act—no one seems to want to do that—we face the prospect of people like Dennis Hutchings being forced to go through a process, at a late stage in their life, that most fair-minded people would regard as unacceptable and that is unlikely to lead to a conviction.

I did not expect for one moment that we would solve this problem today, but I hope that we have clarified the issues, and have focused the Government’s attention on what needs to be done, so that we do not end up with our soldiers having to worry about not only warfare but lawfare.

Question put and agreed to.

Resolved,

That this House has considered the Seventh Report of the Defence Committee, Investigations into fatalities in Northern Ireland involving British military personnel, Session 2016-17, HC 1064, and the Government response, HC 549.