Armed Services: Claims

Lord Craig of Radley Excerpts

Thursday 24th November 2016 Lords Chamber

[Lord Craig of Radley (CB)]

My Lords, I am delighted to be able to follow the noble and learned Lord, Lord Brown of Eaton-under-Heywood, and commend his absolutely brilliant analysis. The Minister stated only last month, on 19 October, that there are no current plans to amend the Human Rights Act; that the Government might derogate from the ECHR in some undefined circumstances; that they do not rule out legislating about combat immunity but there are no plans in train for any major change; and that they will “announce further measures shortly”. It is a quiver full of the vaguest of promises but no action. Lack of action has been going on for far, far too long.

More than three years ago, I pointed out that this year’s Armed Forces Bill would be a very appropriate and timely vehicle for introducing in statute combat immunity and other legal protection for the Armed Forces on operations. The Government resisted. Every service man and woman of whatever rank should not be exposed in operations to fear of, let alone belated mental trauma from, contemporary legislation, even that which has brought strength and validity to human rights protections. In a non-violent, peacetime scenario, there must be few who do not accept and support these rights, but they were surely cast and designed for use in non-operational settings. Some may still have a place whatever the scenario, but others, such as the right to life, or to family life, are so clearly at odds with the stark realities of conflict.

Nearly 20 years ago, when the Human Rights Bill was being debated, I pointed out the incompatibilities between the Armed Forces Acts—in those days each service had its own Act—covering the behaviour and discipline of the Armed Forces, and the human rights legislation. While the Armed Forces were obviously a public body, the requirements of discipline underwritten in the forces’ Acts could not be dovetailed into the intentions of the human rights legislation. My pleas and those of others were not accepted. The services have therefore had to live with the incompatibilities between these Acts—incompatibilities that have now morphed into the many cases of alleged criminal behaviour being followed up by the Iraq Historic Allegations Team, or IHAT.

IHAT’s existence and behaviour is, in part, also due to other legislation—the International Criminal Court Act 2001—which was much trumpeted and most earnestly endorsed by the then Government. I can remember well the concerns expressed not only by the then Chiefs of Staff and other serving officers but by many of us in your Lordships’ House. The then Government’s stance was to insist that arraignment before the International Criminal Court could never happen. Our courts and the International Criminal Court would abide by complementarity; that is, that the International Criminal Court could only be brought in if the national court and authorities were unwilling to deal with a case or negligent in doing so. No British justice would fall foul of such a charge, it was asserted. So the services had nothing to fear. But the obverse is now the case. Serious criticism and faults have been found by the UK courts in IHAT methods. Indeed, the Government seem to fear that one or more IHAT cases might be at risk of being brought before the International Criminal Court. The Minister admitted as much when responding to a Question on 19 October. If this is true, what should the Government now do about their involvement in and commitment to the ICC?

The USA and the French have not ratified, and there is a fine legalistic distinction between declarations and statements in any ratification. But, given the difficulties—the unintended consequences, if you will—surely thought and action must be given to adjusting the UK position with the ICC. Media comment recently suggested that other countries are indeed withdrawing from it. The Government are to pull away from the European Court of Human Rights and repatriate all aspects of legal procedures into our own sovereign authority. Should they not also apply the same philosophy to our relationship with the ICC? The USA is said to be helpful and supportive of the ICC without ever having ratified the treaty. Why cannot we have a similar approach and understanding?

Some will no doubt argue that any derogation or change would be quite impossible, or at least that the services’ concerns are not reason enough to be seen to be trying to push a few tender fruit off the ICC apple cart. But we are not talking about just anyone—service men and women and veterans have surely earned special consideration, as the Armed Forces covenant’s statutory approval indicates. We have had words of determination from government sources at the highest levels, we have had manifesto commitments, and we have had a quiver full of promises, but we seem to be no nearer to resolution. Service men and women are in conflict situations today. They have no immunity. Action, not fine words, is needed, and needed now.

--- Later in debate ---

[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.

[Lord Craig of Radley]

My Lords, the Minister mentioned bringing forward some further information about combat immunity shortly. Can he define “shortly”?

[Earl Howe]

I believe that I said “very shortly”, and I say that advisedly—it will be within the next month.