Armed Forces: Historical Cases

Kirsten Oswald Excerpts

Thursday 23rd February 2017 Commons Chamber

[Kirsten Oswald (East Renfrewshire) (SNP)]

I thank all hon. Members who secured the debate. I will focus on issues that relate to the Iraq Historic Allegations Team, since other Members have fully and eloquently addressed the situation in Northern Ireland. I was not a Member of the House during the Iraq war or when IHAT was established in 2010, so I have looked at it afresh. There are three questions: how we got to the point of establishing it; what went wrong with the process; and where we go from here.

In a debate on a related topic last year, a Conservative Member told one of my hon. Friends:

“The danger of the argument he is making is that the Scottish National party is turning soldiers from cannon fodder into courtroom fodder.”—[Official Report, 27 January 2016; Vol. 605, c. 200WH.]

When he reflected on that statement, he might have regretted its implication, because members of our armed forces should never be regarded as cannon fodder. Too often, it appears that the last thing to concern the Ministry of Defence is the impact of its decisions on members of our armed forces.

Many hon. Members here today are conscious, as I am, that we ask our armed forces to undertake challenging and dangerous operations. We might not always agree with Government foreign policy or defence strategy, but one of the implications of joining the armed forces is, in part, to pass to others responsibility for deciding who is and who is not an adversary. In return, the people who do the job with the commitment and professionalism that they are renowned for are right to expect the fullest protection we can give them. They have a right to expect the laws that they are required to obey to be clear. The techniques that they are taught to use, the training that they are given and the rules of engagement under which they operate must be in compliance with those laws and kept up to date. When we look at the background to the IHAT process, it seems that the MOD failed in that aspect of its duty of care.

In this place, we can endlessly debate the territorial extension of the European convention on human rights versus the application of international humanitarian law, but in the real world that current and past members of the armed forces are in, those are not things to consider at their leisure if they find that a serious allegation is made against them for something that happened many years ago. IHAT was set up in a desperate effort to address that failure, but it was not the right answer and it was not delivered in the right way.

In my constituency, I have been involved with a case in which IHAT dealt very badly with a veteran. It wasted huge resources sending officers from the south of England to the west of Scotland, and that journey was entirely wasted because they had done no homework. There was a real lack of clarity about their status, and they breached confidentiality by asking members of the community for the veteran’s whereabouts. That was completely unacceptable. He was not hiding and he had not done anything wrong. There is no justification for behaving like some kind of military Sherlock Holmes. There was also an utter failure to provide an opportunity for appropriate pastoral care.

I ask hon. Members to reflect on why it was necessary to put in place such specific resources for the Iraq conflict. Is this just another toxic legacy from that conflict that will disappear over time? It is interesting that one of the significant changes in IHAT was the shift in resources from the Royal Military Police to naval police because of the perceived conflict of interest if the RMP was carrying out inquiries into its own former cases. Perhaps the increasingly complex international framework means that resources of the kind put in place for IHAT need to be planned for to ensure that the process is undertaken with a great deal more professionalism and concern for the wellbeing of current and former service personnel.

That brings me to how we go forward from here. In the Defence Committee report to which other hon. Members have referred, there is a clear acceptance that the IHAT process has been flawed and that the problems that it caused were, in many cases, foreseeable and avoidable. The first principle that the report recommends for consideration is the importance of support for current and former service personnel. That goes to the heart of the issue and of our responsibilities, because no one wants innocent members of the armed forces to be unfairly accused of wrongdoing. They do a difficult and dangerous job and for the most part they do it extremely well.

Justice cannot be served unless processes are managed in a transparent, structured and expeditious way. It is important that the MOD accepts that if poor or illegal practices are taught to service personnel and implemented by them, it needs to step up and accept responsibility, rather than letting individuals take the blame. If cases have been disposed of, it must be assumed that they can be reopened only if compelling new evidence is brought forward. Similarly, cases should be opened after 10 years only in exceptional situations.

The decision to outsource so much of the IHAT operation was particularly unhelpful, but the blanket closure of IHAT and derogation from the ECHR cannot be seen as our primary responses. The desire to distinguish between serious and spurious claims is laudable, but no indication has been given of how the difference can be determined without judicial process. Service personnel deserve to know which judicial process that will be and that the choice has been well considered.

Action is needed to provide an alternative and to avoid the MOD being allowed to continue with processes that are not independent or transparent. If our solution is simply to derogate from the ECHR because we are not prepared to put in place the right framework to deliver, we are sending the wrong message on human rights and potentially causing problems for our troops on overseas operations. There is a danger of confusion and uncertainty for them about what they can and cannot do in that context.

I was disappointed to read the Attorney General’s evidence to the Defence Committee, in which he confessed to having no knowledge of the position taken on these matters by other countries that operate within the ECHR. Given the history and the fact that he was attending as a witness, that showed an extraordinary lack of preparedness from the Government’s legal team.

The Government must not pass responsibility for the interpretation of international humanitarian law to troops on the frontline. Differences of interpretation could put our forces and others around them at risk. The Secretary of State for Defence’s justification that

“military advice is that there is a risk of seriously undermining the operational effectiveness of the Armed Forces”

just does not stack up. This might be unpalatable to him and the Government but, looking forward, the truth is that that simply means that the MOD is compromising the defence of human rights and its responsibility to our armed forces as a cost-cutting measure. Whatever the solution is, that is no solution at all.