Immunity for Soldiers

Robert Courts Excerpts

Monday 20th May 2019 Westminster Hall

[Robert Courts (Witney) (Con)]

It is an honour to serve under your chairmanship, Mr Bone. I congratulate my hon. Friend the Member for Southport (Damien Moore) on leading this extremely important and topical debate.

I always speak with some trepidation in debates such as this. I cannot speak with the authority of the hon. Member for Strangford (Jim Shannon), my right hon. Friend the Member for Chingford and Woodford Green (Mr Duncan Smith) or my hon. Friends the Members for Beckenham (Bob Stewart), for Plymouth, Moor View (Johnny Mercer) or for Wells (James Heappey), who have been there and experienced it. In fact, I am afraid I am one of the lawyers of whom various hon. Members have spoken. However, I venture to say a few words simply to make the point that the abhorrence of lawfare is not confined to those who have served or are serving, but extends also to lawyers.

I am a barrister. Lawyers—those who serve at the Bar—have an honourable profession. They speak for people who cannot speak for themselves. They often speak for the downtrodden—people who need to be listened to but are not listened to at all. Members of the Bar are fiercely independently minded. They will say things that are not popular, and they will argue for causes for which no one else wants to argue. But sometimes they are put in the position of having to prosecute law, or defend law, that is wrong. When law is wrong, it is the job of Ministers to act and of Parliament to approve; the lawyers are put in the wrong position, and it is for us in this place to act. So it is in this case. The law needs adjustment to right this great wrong.

I feel very strongly about this matter, albeit from a different perspective from those who have spoken so movingly. I first came across this aspect of lawfare in 1993, when Lee Clegg, who was mentioned earlier, was on trial for murder. I was about 14 and, being probably an uppity little fellow, I wrote an essay saying how unjust I thought it was that someone who had made such a narrow decision in such trying circumstances was being tried for murder.

Of course, that was a highly controversial case. I will explain why I say that. I am grateful to my hon. Friend the Member for Beckenham for giving me his yellow card, upon which that case turned. Article 5 reads:

“You may only open fire against a person:

a. if he is committing or about to commit an act LIKELY TO ENDANGER LIFE AND THERE IS NO OTHER WAY TO PREVENT THE DANGER. The following are some examples of acts where life could be endangered, dependent always upon the circumstances”.

The third of those examples is

“deliberately driving a vehicle at a person and there is no other way of stopping him.”

The issue of driving at a person was the point on which the Clegg trial turned. That is an incredibly narrow distinction. That is why the case was so controversial at the time, and why it remains controversial to this day. The court was dealing with someone who at the time would have been in his teens or early 20s and under enormous pressure. My understanding of the case is that he fired shots as the car approached, which would not have been subject to action, and then a nanosecond later fired a shot through the rear windscreen, which sadly killed somebody. That was the point upon which the case turned.

Those who have served may well say, “The rules are what they are, and you have to accept and work within the rules.” Of course I entirely hear that. However, as my hon. Friend the Member for Wells pointed out, if it is difficult for someone to make that incredibly narrow distinction at the time, when they are frightened, under enormous pressure, young and inexperienced, how much more difficult is it 50 years later for them to remember how they felt and the reason they acted as they did?

Everyone should be clear. Neither I nor anyone else in this House is saying that servicemen should be above the law, but there is no moral equivalence whatsoever between servicemen who are involved in an unplanned incident—and who are sent to do a job, to protect people and to do their duty—and terrorists, who set out to do none of those things and who maim and murder. No one suggests that servicemen should be above the law. They do not want carte blanche to do whatever they like; they want recognition for the incredibly difficult and trying circumstances faced by servicemen who are young, inexperienced, frightened and under severe pressure, including having to make split-second decisions.

[Dr Lisa Cameron (East Kilbride, Strathaven and Lesmahagow) (SNP)]

The hon. Gentleman is making an excellent speech and raising a number of notable points. I must declare an interest, in that my husband is a veteran. As a psychologist I have worked on trauma, which affects the brain after an incident. On trauma processing, in many circumstances it is extremely unlikely that people will have an accurate recollection. Surely that must also be taken into account in these cases.

[Robert Courts]

That is an outstanding point, and I entirely agree. My hon. Friend the Member for Wells made a similar point. I have not prosecuted or defended military cases such as these, but I have in cases of affray and assault. As any criminal barrister will say, if there are 10 witnesses to an affray, there will be 10 different versions of events. There are many reasons for that. Part of it is perception, but is also because everyone is involved in a stressful situation, and that has an effect on the brain. Of course, that is exacerbated over the course of months and years as time passes.

We would probably accept that there may be a need for investigations, but, as my right hon. Friend the Member for Chingford and Woodford Green said—I am glad he has returned to his place—it is a question of natural justice. If someone has been acquitted after being investigated by a proper competent authority, there comes a point when there should be no repeat investigations into those historical matters. That is close to the double jeopardy rule, which used to exist except in certain circumstances.

I do not accept that there is no way in which the law can deal with these cases. I am grateful to the Secretary of State for indicating that a statute of limitations or a presumption not to prosecute—which amount to much the same thing—will be considered for those who served outside the UK. However, it would be incredibly difficult to apply two different regimes to a soldier who had happened to serve in both Iraq or Afghanistan and Northern Ireland. It is difficult to see how that would be a logically sustainable position for justice and the law of the land.

The point, essentially, is this: those who have put everything on the line for us are entitled, at the very least, to us drawing a line at a point after which they know they will not have to fear a knock on the door in the night. They should not have to fear a cavalcade of police cars taking them away when they are in their old age. I am grateful to the Secretary of State for her indication, but there are ways in which this matter can be dealt with. A statute of limitations would provide a safeguard for exceptional circumstances and new evidence; the same is true of a presumption not to prosecute. As I observed in our previous debate on this issue, civil law—which, obviously, is not the same—offers a similar safeguard for when matters come to light years later. To give one example off the top of my head, a witness may appear who had never been seen before. The law is able to do that; what we need is the political will.

This has been going on for far too long. Those who served in Northern Ireland are entitled to know that their country has got their back, just as they had their country’s back at the time of maximum peril. We have had enough talk. We need action, and we need it now.

--- Later in debate ---

[Stephen Pound]

If there is one thing that has echoed round this Chamber today, it is that there is no equivalence between troops and terrorists—between people who wear uniform and people who wear balaclavas. I am sorry, but I resent the right hon. Gentleman’s point; I think that the attempt to make it demeans the quality of the debate. He was a very distinguished Defence Minister, and he speaks with good sense on many occasions, but that point was slightly unworthy of him.

The hon. Member for Belfast East (Gavin Robinson) rightly spoke about the rule of law. He mentioned something that I still find almost too agonising to think about: the on-the-run letters. I can do no better than quote Mark Durkan, formerly of this parish, who said that he felt those letters blighted the peace process

“with their penchant for side deals, pseudo-deals…shabby deals and secret deals”.—[Official Report], 26 February 2014, c. 249.]

That is recognised on this side of the House, and I hope on all sides. They are not defensible, and we would not seek to defend them today.

The right hon. Member for New Forest East (Dr Lewis) raised an extremely interesting point, to which a few others have referred: the almost unbearable tension in the mind of a 17, 18 or 19-year-old person who knows that at any minute something they do could have lethal consequences—against them, or from them. That is the point: it is just as terrifying for them to think of the damage they could do to someone as to think of the damage that that person could do to them. The point that the right hon. Gentleman made about that fear is something that only people who have been in the situation can understand, and I am grateful to have heard what he said. The hon. Member for Strangford talked about the environment of tension, and that is something we need to talk about.

The hon. Member for Plymouth, Moor View (Johnny Mercer) widened the horizons of the debate, and talked about IHAT and lawfare. I have no case to make for lawfare or those ambulance-chasing scoundrels of lawyers who somehow manage to infest the lower reaches of the legal system like foul leeches, trying to take blood from our people. I have no time for those people who came up with trumped-up cases to embarrass, and in many cases threaten and terrify, people who had served with distinction and honour. I have no time for those leeches, those bloodsuckers, those ambulance-chasing scumbags.

[Robert Courts]

Will the hon. Gentleman give way?

[Stephen Pound]

I have another half-dozen insults to go. I appreciate that the hon. Gentleman has today confessed in public to being a lawyer, so if he wants to redress the balance, I happily give way to him.

--- Later in debate ---

[Robert Courts]

I was enjoying listening to the stream of insults, but I feel I should perhaps stick up for my profession and reiterate my point that lawyers just interpret the law as it stands. It is for Ministers to act and Parliament to make the law. If there is a problem, as many of us will accept there is, it is for us to deal with it, and not blame the lawyers.

[Stephen Pound]

Fabrication of evidence is not a legal requirement of the British Parliament. We have not at any stage stated in part 3, paragraph (27)(b) of schedule 2, “thou shalt go forth and fabricate evidence”. There are more than enough cases in which people have fallen way short of the high standards of the legal profession so gloriously and elegantly exemplified by the hon. Gentleman.

I have heard many speeches by the right hon. Member for Chingford and Woodford Green (Mr Duncan Smith), and have never regretted a second that I spent listening to them, because he speaks with profound good sense. Today he gave us the slightly unusual perspective of the man in the caravan in the masonic hall car park. Again, he made the point about the impact of tension on young people. Often in groups of young people in such a situation, one person tends to lead, and if there is one person in a platoon with a contemptuous and contemptible attitude towards the people they are supposed to be protecting, that will often ratchet up. A person will say things that are unforgivable, and other people in the platoon, in the file, or on the mess deck, will be uncomfortable about challenging it. That happens with human behaviour. It is human. It is important to realise it.

We cannot mention too often the name of the late Captain Robert Nairac. We are at the anniversary of his disappearance and death. What a tragic waste of a life it was. It was one of 3,500, by all means, but he was a man who gave his all—everything—for his country, and I do not think that we can forget him.

I found it extraordinarily moving when the hon. Member for South Dorset (Richard Drax) talked about arriving, as a newly commissioned officer, in civvies on a civilian transport into Northern Ireland, and finding he was in a country—a place—he did not recognise. Is that not part of the problem? On our relationship with “John Bull’s Other Island”, we often do not understand Ireland or the Irish. It would have been even more honest of the hon. Gentleman to say that he had, perhaps, some preconceptions about Ireland, but he had the courage to say that when he arrived there, he did not realise the full nature of the place he was coming to. I think that that shock was dramatic, and what he said was much to his credit.