Armed Forces: Historical Cases

Tom Tugendhat Excerpts

Thursday 23rd February 2017 Commons Chamber

[Sir Jeffrey M. Donaldson (Lagan Valley) (DUP)]

I beg to move,

That this House acknowledges the service and sacrifice of the armed forces and police during Operation Banner in Northern Ireland as well as in other theatres of conflict in Iraq, Kosovo and Afghanistan; welcomes the recent decision to close down the Iraq Historical Allegations Team; and calls on the Government to take steps to ensure that current and future processes for investigating and prosecuting legacy cases, whether in Northern Ireland or elsewhere, are balanced and fair.

On behalf of my right hon. and hon. Friends, I am delighted to move this motion in the name of the Democratic Unionist party. Let me say at the outset that our party holds veterans of our armed forces and those who have served in the police, not only in Northern Ireland but across the United Kingdom, in the highest esteem. We have always sought to use our parliamentary time to raise issues that are of concern to those people; I am glad to do so again today. I welcome the opportunity for this debate, and I thank all Members present, including the Ministers from the Northern Ireland Office and the Ministry of Defence.

Although policing and justice issues are now devolved to the Northern Ireland Executive, the legacy of our troubled past remains a matter for this Parliament and the UK Government to deal with. Our motion refers to other theatres of conflict, including Iraq, Kosovo and Afghanistan, and I pay tribute to all those who served in each of those operations, especially to those who died in the service of our country. I know that other right hon. and hon. Members will wish to refer to those people. I hope the House will forgive me if I concentrate mainly, and with good reason, on the situation in Northern Ireland.

I remind hon. Members that Operation Banner was the longest-running military operation in the history of the Army. During the period known as the troubles in Northern Ireland, there were more than 3,500 deaths, of which more than 2,000—some 60%—were murders carried out by republican paramilitary terrorists, mainly from the Provisional IRA, while more than 1,000—some 30%—were carried out by loyalist paramilitaries. British and Irish state forces were responsible for 10% of the deaths, almost all of which occurred as a result of entirely lawful actions, when soldiers and police officers acted to safeguard life and property and uphold the rule of law. In fact, a member of the security forces in Northern Ireland was three times more likely to be killed than a member of the IRA. If we contrast that with Iraq, for example, where terrorist insurgents were three times more likely to be killed than members of the armed forces, it sets the Northern Ireland situation in context.

Let me restate for the record that paramilitary terrorists were responsible for some 90% of the deaths in Northern Ireland—on both sides of the border, that is—whereas 10% of the deaths are attributable to state forces. Those deaths include more than 3,000 unsolved murders arising from our troubled past. What a terrible legacy that is—one of pain, loss and a deep sense of injustice on the part of the victims and their families.

Let me be clear that there can be no moral or legal equivalence between our police or armed forces and those who were members of illegal, criminal terrorist organisations. Let us contrast how the two have been treated. It is a well accepted principle that in a democracy no one should be above the law, yet—as will become clear from my remarks—there appears to be one rule for those who serve our country and another for those whose objective is to destroy it. Unfortunately, the legacy issues were not adequately addressed, never mind resolved, in the deeply flawed Belfast agreement of Good Friday 1998. Instead, in that agreement the Government of the day agreed to release early from prison those prisoners sentenced for offences linked to the troubles in Northern Ireland and who were members of a terrorist organisation on ceasefire and supporting the peace process.

In effect, the terrorists, who were found guilty of crimes including murder, were released from prison after serving only two years in jail. They included, for example, the notorious Shankill bomber, Sean Kelly, from the constituency of my right hon. Friend the Member for Belfast North (Mr Dodds). Kelly was sentenced to nine life terms in prison for the murder of nine innocent civilians on the Shankill Road. He served just seven years in jail—less than one year for each life he destroyed.

In addition, in September 2000, beyond the terms of the agreement, the then Secretary of State, now Lord Mandelson, announced that the Government would no longer seek the extradition of those Provisional IRA prisoners who had escaped from prison, including several who had escaped from the Maze prison in my constituency in 1983. They included convicted terrorists such as Dermot Finucane, brother of the late Pat Finucane and former head of the Provisional IRA southern command, and Kevin Barry Artt, who had been convicted of the murder of the deputy governor of Maze prison, Albert Miles, who was shot in front of his wife. What an appalling atrocity! They also included Liam Averill, convicted of the sectarian murder of two Protestants, who escaped from the Maze prison dressed as a woman in 1997. Their extradition was not sought by the Government of the day. In addition, perhaps up to 30 Provisional IRA terrorists have been granted the royal prerogative of mercy and allowed to go free.

In 2001, the then Labour Government sought to extend the concession further so that an amnesty would be introduced for all members of terrorist organisations on ceasefire. In a letter dated 4 May 2001, the then Secretary of State, Dr John Reid, wrote to the Prime Minister, Tony Blair:

“In the Hillsborough statement of 8 March we accepted publicly for the first time that it would be a natural development of the Early Release Scheme to discontinue the prosecution of pre-Good Friday Agreement offences allegedly committed by supporters of organisations now on ceasefire.”

In the same letter, Dr Reid made it clear that the legislation to provide for that amnesty

“should exclude members of the security forces from the amnesty arrangements, though we should not underestimate the difficulty of holding this line in Parliament in the face of an inevitable press campaign.”

You bet, Dr Reid! We opposed it vigorously and stopped it in its tracks. I am confident that this Government would never consider such a concession to those who have committed murder on the streets of Northern Ireland and Great Britain.

Note that an amnesty was offered—an amnesty was put on the table for terrorist organisations while members of our security forces were to be excluded, just as they were excluded and ignored in the agreement of 1998. Dr Reid was certainly right about the opposition that he would face to such a reprehensible scheme.

But things did not stop there. A secret deal was then done between the Northern Ireland Office and Sinn Féin, to the benefit of Provisional IRA terrorists who were still on the run—fugitives from justice. They were wanted for questioning about serious terrorism-related offences, including murder. Letters of comfort were issued by the Northern Ireland Office to each of those terrorists, sometimes delivered by the postman Gerry Kelly from North Belfast, informing them that there were no warrants in existence and that they were not wanted in Northern Ireland for arrest, questioning or charge by the police. The issuing of those letters by the Northern Ireland Office resulted in the disgraceful situation of an alleged IRA member, John Downey, being able to escape conviction in the courts in London for the murder of four soldiers in the Hyde Park bombings of 1982. I could go on, but it is important that we focus now on the sacrifice of the security forces—of those who served our country.

According to the Sutton Index of deaths during the troubles in Northern Ireland, 520 members of the regular Army, Royal Navy, Royal Air Force and reserves, and veterans, were murdered by terrorists during Operation Banner. In addition, 243 members of the Ulster Defence Regiment and Royal Irish Regiment, and veterans, were murdered by terrorists. Some 325 members of the Royal Ulster Constabulary and other constabularies, and retired police officers, were murdered by terrorists. Twenty-six prison officers and former prison officers were murdered by terrorists. That amounts to 1,100 men and women in the service of the Crown who were murdered by terrorists, and countless others seriously injured and left to bear the mental and physical scars of this reign of terror.

[Tom Tugendhat (Tonbridge and Malling) (Con)]

I am grateful to the right hon. Gentleman for giving way; he is speaking powerfully about the victims of terror. One of the victims who is not counted is my uncle, who now sits in the other place. He was attacked brutally by IRA men while representing our country in Brussels. I understand why the right hon. Gentleman mentions the statistics, but they hide so many scars. Victims are hidden because they are not listed, yet they bear those scars today, even if they were unharmed physically.

[Sir Jeffrey M. Donaldson]

The hon. Gentleman is absolutely right. As I said, countless others were seriously injured and left to bear the mental and physical scars of this reign of terror.

It is evident that little effort has been made to bring to justice those responsible for the heinous crimes committed by the terrorist organisations responsible for 90% of the deaths during the Northern Ireland troubles. Yet enormous resources—hundreds of millions of pounds of taxpayers’ money and countless hours of valuable police time—have been devoted to hounding the security forces: to vigorously pursuing investigations against veterans of the armed forces and retired police officers.

The Chief Constable did establish the Historical Enquiries Team that sought to re-examine the unsolved murders in Northern Ireland, but it could review only the previous police investigations and lacked full police powers to renew the investigation of these killings. It was eventually wound up, and the Police Service of Northern Ireland established a new Legacy Investigation Branch as a temporary measure until wider agreement could be secured on the legacy issues.

Today, the PSNI Legacy Investigation Branch devotes a wholly disproportionate level of its resources to the investigation of killings linked to the security forces and hopelessly inadequate resources to the thousands of unsolved terrorist murders. Recently, two retired veterans of the Parachute Regiment, aged 67 and 65, were charged with murder in connection with the shooting of IRA commander Joe McCann in Belfast in 1972. That follows the decision to prosecute a 75-year-old veteran of the Life Guards who has been charged with the attempted murder of a man in County Tyrone in 1974.

While the families of thousands of innocent victims, including the police officers, soldiers and prison officers involved in more than a thousand murder cases, wait in vain for some action to be taken to investigate those crimes, the police are devoting resources to investigating the small number of killings linked to the state.

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[Sir Jeffrey M. Donaldson]

I thank the hon. Gentleman for his support for the institutions proposed under the Stormont House agreement. At present, in fairness to the victims and families who have waited a long time, the proposal is that the historical investigations unit would pick up where the historical inquiries team left off in chronological order. It would be wrong to go back to the beginning and start again, leaving the people who have already waited many years having to wait even longer. Nevertheless, if there is new evidence or there are new evidence-gathering techniques with the potential to lead to a prosecution in the cases already reviewed by the HET, of course we believe that the HIU should examine them. We have no objection in principle to that happening. We believe that all innocent victims in Northern Ireland should have access to justice and be treated equitably and fairly.

It is important that the Government now proceed with the Stormont House agreement and get on with publishing the draft legislation to give innocent victims and others the opportunity to comment on the proposals, so that at last we can begin the process of implementing what has been agreed and the focus will no longer be solely on what the state did. That will shift the focus and address the issues already raised in the House about the attempt to rewrite history, because the IRA and the other terrorist organisations will be put under the spotlight. What they did will be examined and brought to the fore.

It is wrong that our retired veterans of the military and the police have to spend their latter days looking over their shoulders, still waiting for the knock at the door, while the terrorists who skulked in the shadows and destroyed countless lives on the streets are left without a care in the world about the prospect of being pursued for their crimes. That simply is not right. The terrorists must be pursued and held accountable for their crimes. We will therefore vigorously oppose any attempt to grant an amnesty to any terrorist organisation. The time has come for the Government finally to do something to protect the men and women who served our country. They were not provided for in the 1998 agreement, while the terrorists were. Special provision was made for the terrorists in 1998, in the form of the early release scheme, and other concessions have been made since, as I outlined earlier, but nothing has been done for those who served the Crown. That is wrong and needs to be addressed.

The Government must therefore give urgent consideration to introducing a statute of limitations for soldiers and police officers who face the prospect of prosecution in cases that—this is very important—have previously been the subject of full police investigations. Let me clear about that: we are talking about cases that were previously the subject of rigorous police investigations relating to killings and deaths that occurred before 1998. The Government need to look at this. It is wrong that our veterans are sitting at home wondering whether a third or fourth investigation will take place into their case simply because some hot, fast-thinking, “make a quick buck” human rights lawyer in Belfast thinks it is a good idea to reopen their case. That is what is going on.

We believe therefore that this matter has to be addressed. We can no longer ignore it. Certainly, we on these Benches have not been ignoring it. We believe not only that a statute of limitations should apply to Northern Ireland and Operation Banner but that consideration should be given to other military deployments, including in Iraq, Kosovo and Afghanistan. This is not an amnesty, as each case will have previously been the subject of a thorough investigation; rather it is an appropriate and necessary measure to protect the men and women of our armed forces from the kind of witch hunt years after their retirement that has left many feeling that their service to their country is neither respected nor valued.

[Tom Tugendhat]

I thank the right hon. Gentleman for his generosity in giving way. I hope that he will forgive me for mentioning that I published a paper with Policy Exchange, entitled “The Fog of Law”, in 2013 that addressed many of these issues, of which he is touching on the essence. We are talking here about human rights. What really do they mean? Surely, they are the rights of people to live in peace and dignity, not the rights of some to persecute those who have tried to protect others.

[Sir Jeffrey M. Donaldson]

I thank the hon. Gentleman for his valid intervention. He is absolutely right, and we appreciate the work he has done in this field and his commitment to his former comrades.

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[James Brokenshire]

My hon. Friend makes that point about the upholding of the rule of law. I will come back to what we judge are the right next steps in terms of balance, proportionality, and giving effect to new arrangements to deal with the legacy issues embodied in the Stormont House agreement.

As my right hon. Friend the Prime Minister made clear in the House yesterday, it is appalling when people try to make a business out of trying to drag our brave troops through the courts. In that context, the motion welcomes the Government’s decision to wind up the Iraq Historic Allegations Team following the solicitors disciplinary tribunal hearing and the consequent decision to strike off Phil Shiner. This called into question the credibility of a large number of IHAT’s remaining case load, which will now revert to the Royal Navy police. To be clear, the Government have a legal obligation to ensure that criminal allegations against the armed forces are investigated, but we remain determined to ensure that our legal system is not abused, as it clearly was by Mr Shiner, falsely to impugn the reputation of our armed forces. We should all support the decisive action taken by my right hon. Friend the Defence Secretary in that case.

[Tom Tugendhat]

My right hon. Friend, who is himself a solicitor, is making an essential point about the rule of law as it must be practised by honourable members of the legal profession. He is highlighting the important role that the Solicitors Disciplinary Tribunal played in finding this man guilty of deception of the most abject kind. Will he comment on how the shadow Attorney General can possibly continue to defend that extraordinary individual and yet claim that she will represent Her Majesty’s Government should the Labour party ever be elected?

[James Brokenshire]

It is important to underline that the Solicitors Disciplinary Tribunal’s hearing resulted in a decision to strike off Phil Shiner, and the credibility of a large number of IHAT’s remaining case load has now been firmly called into question. It is important that we respect, recognise and uphold that determination by the Solicitors Disciplinary Tribunal.

--- Later in debate ---

[Sir Henry Bellingham]

I absolutely agree with the hon. Gentleman and I will come on to that in a moment.

The key point about the Hutchings case is that it was fully investigated at the time. It was looked at by every available authority and organisation, and closed down at the time. Reopening cases now is revisionism. It is an attempt to rewrite history. It is trying to look at what happened then through the lens of 2017, when we have a whole new emphasis on human rights and different standards. It is perverse, wrong and completely unacceptable.

[Tom Tugendhat]

My hon. Friend makes a very good point, which complements entirely the one made by the hon. Member for South Down (Ms Ritchie). She is absolutely right that we have to move on, but in moving on we have to allow those who have served to move on. In a case like this, where it is so obvious and so clear that justice has not only been done but been seen to be done multiple times, surely the moving on can be done actively.

[Sir Henry Bellingham]

Let us look at what happened to the IRA and the paramilitaries. Their sole aim was to murder, maim and kill, and to disrupt communities. They did not investigate their own crimes and murders. They celebrated the killings they took part in. They were not subject to the Geneva convention or any other rule of law—or the British law on torture.

What about Captain Robert Nairac, the military intelligence liaison officer, who was abducted in County Armagh in May 1977? He was brutally tortured and killed. He was posthumously awarded the George Cross. He is one of nine IRA victims whose body has never been recovered. What about Corporal David Howes and Corporal Derek Woods, who chanced on an IRA funeral in March 1988? They were dragged out of their car, tortured and murdered. One of the most extraordinary pictures from the troubles is that one of Father Alec Reid administering the last rites to those two corporals. What about the Free Scottish privates who were abducted from a pub in 1971? They were off duty and unarmed; they were abducted and tortured, and no one has ever been convicted.