Afghanistan: Independent Inquiry

Lord Coaker Excerpts

Tuesday 20th December 2022 Lords Chamber

[Lord Coaker (Lab)]

My Lords, His Majesty’s Opposition welcome this special inquiry under Lord Justice Haddon-Cave into alleged unlawful activity by His Majesty’s Armed Forces, and the fact that it will start in early 2023. We also welcome the fact that this work will provide full legal and pastoral support.

Can the Minister confirm at the outset that the inquiry will be given access to all the records, documents and other evidence that it needs, as well as personnel? The reputation of our Armed Forces and our Special Forces is second to none and we are rightly proud of them. However, we are also proud of the high standards of military ethics, professionalism and respect for international law that we abide by and uphold. Therefore, does the Minister agree that an inquiry such as this is essential to protect the reputation that we rightly have, and that it must not only succeed but be seen to succeed?

There are currently two ongoing judicial review cases which have informed this decision to have the independent inquiry. Can the Minister outline the relationship between these judicial reviews and the inquiry? The Minister’s Statement says that the MoD accepts that Operation Northmoor should have started earlier and that there may be further lessons to learn from the incidents, despite there being insufficient evidence for any prosecution.

The terms of reference allow the investigation to look at whether there is any credible information that any of those who died in the DDOs carried out between mid-2010 and mid-2013 were killed unlawfully. What happens if they find such information? Are prosecutions then possible concerning Operation Northmoor, despite what was said in the Statement? What has changed in the MoD since July, when the BBC’s “Panorama” reports on these allegations were immediately dismissed by the MoD as irresponsible, incorrect and jumping to unjustified conclusions? Now, just a few weeks later, we have an independent inquiry. What changed?

Can the Minister confirm that the terms of reference allow the inquiry to substantiate any allegations, as well as how the allegations were handled? Can she clarify that the inquiry’s independence is fully assured, given that it is to take place in the MoD? And can she confirm that, as this inquiry was established under the Inquiries Act 2005, it is statutory and, therefore, that Lord Justice Haddon-Cave can summon whichever witnesses he sees fit and, if necessary, compel them to attend and give evidence under oath? Can he also ask any serving military personnel to attend the inquiry, whatever their rank? Does that also apply to civil servants, and political and other personnel? In the same period that is the subject of this inquiry, Australian Special Forces were also being investigated. Have we spoken to them to see if we can learn any lessons from them?

Then there are the implications, or potential implications, of this inquiry for Acts that have been passed and Bills currently before Parliament. I will give two specific examples. Can the Minister assure us that nothing in the Overseas Operations (Service Personnel and Veterans) Act will prevent or hinder the investigations of this inquiry? Of course, we are all opposed to repetitive, vexatious, historic claims, but some clarification and reassurance is needed here.

Furthermore, can the Minister tell us whether the inclusion of Clause 28 in the National Security Bill has anything to do with this inquiry? In other words, is the proposed legislative change in this Bill a consequence of what has or has not happened? Clause 28 of the National Security Bill amends Schedule 4 to the Serious Crime Act 2007 to provide that extraterritorial application of certain offences of assisting or encouraging the commission of an offence overseas does not apply if the behaviour was necessary for the proper exercise of any function of the intelligence services or Armed Forces.

Section 50 of the Serious Crime Act already provides a defence of acting reasonably where the defendant believed certain circumstances to exist and the belief was reasonable. The House of Commons Library states:

“The provision … appears to be intended to extend immunity from criminal prosecution to actions which could not be proved to have been reasonable.”


What, if any, discussions have the MoD had with the Home Office about Clause 28, and is it relevant or not?

I finish by quoting Minister Murrison, who said:

“I hope that the whole House shares my pride in our armed forces. They are renowned throughout the world”.—[Official Report, Commons, 15/12/22; col. 1259.]


Well, we all do, and we are very grateful for their professionalism and loyal service. It is because of that that we need to make sure that we get this inquiry right and that everyone is committed to seeing it succeed.

[Baroness Smith of Newnham (LD)]

My Lords, I start exactly where the noble Lord just left off: by acknowledging the debt we owe our Armed Forces and the high standards to which we hold them and to which the vast majority always adhere. But it is vital for the reputation of His Majesty’s Armed Forces and of our country that, if there has been illegal, inappropriate and unlawful action, it is investigated.

These Benches endorse all the questions that the noble Lord has just asked from the Labour Benches. They are all pertinent to the questions that the House should be asking, but I will add just a few points for further clarification.

One of the first questions that came to my mind was indeed about the Overseas Operations (Service Personnel and Veterans) Act 2021. I note that Minister Murrison had almost second-guessed what noble Lords might ask by saying that the 2021 Act was always designed to enable the investigation and follow-up of any serious allegations, irrespective of time passed. So I ask the noble Baroness whether it is possible to reassure the House that none of the issues that will now be subject to the inquiry could be deemed out of scope under the purview of this Act. One of the serious concerns expressed by all sides of your Lordships’ House was that, precisely by having a time limit, certain crimes and unlawful actions would not be investigated. The House really needs reassurance about that. It is notable that the actions we are talking about date back over a decade, from mid-2010 to mid-2013. The timeframe is therefore very significant.

As the noble Lord pointed out, there are two cases of judicial review at present. It would clearly not be appropriate to ask questions or expect an answer on those at the moment, but might the Minister be able to tell us whether His Majesty’s Government believes that these are the only cases that need to be investigated, or whether the Ministry of Defence is anticipating that there could be further significant cases coming forward? At the moment, we are looking at potentially quite a limited inquiry. However, it could be very significant indeed. Some reassurance would be welcome.

The final point is on the question that we have already heard about the National Security Bill currently going through your Lordships’ House. How does Clause 28 fit with the investigation and the overseas operations Act? Can we, as a Parliament and a country, actually expect there to be proper scrutiny? Clause 28 seems to pave the way for some lacunae in the law. Can the Minister reassure us? If not, she should expect a number of amendments to the National Security Bill from all parts of your Lordships’ House.