Iraq Historic Allegations Team

Tom Tugendhat Excerpts

Wednesday 27th January 2016 Westminster Hall

[Steven Paterson (Stirling) (SNP)]

I thank the hon. Member for Newbury (Richard Benyon) securing today’s debate. It is crucial that we not only support our service personnel but uphold human rights and have the UK show leadership in promoting international human rights.

Our armed forces carry out a vital role on our behalf, often in harsh and dangerous conditions. Their courage and professionalism are to their immense credit. As part of that professionalism, our armed forces should and must be able to justify their decisions and actions against clearly defined standards of conduct. When allegations are made that conduct has not met the high standards expected by both society and the armed forces, they must be taken seriously. When there is a case to answer, the case must be investigated fully and fairly.

Since the inception of the Iraq Historic Allegations Team, a number of issues have arisen that require consideration, as many speakers have touched on today. They include the scope of the investigations, the considerable volume of the case load, the amount of time that has passed in some of the incidents involved and concerns about the credibility and veracity of the allegations. Each of those issues presents challenges to IHAT and to us, who oversee it, in the dispensing of justice.

The latest figures that I have seen indicate that 1,514 allegations have been reported to IHAT, making up 1,329 cases. Of those, 43 have been closed and 57 dropped, with 280 UK veterans under investigation. It is only fitting and fair that we are concerned about the number of allegations and the speed of the investigations, and it is no surprise that many hon. Members, including the hon. Member for South Dorset (Richard Drax), have raised that issue.

I understand that IHAT has about 150 staff, so in my view, it is reasonable to question the speed at which cases are being dealt with. Indeed, if I were a member of a committee scrutinising the issue, I would have serious questions for witnesses and would be pressing them on the apparently slow rate of progress and for a comparison with other legal jurisdictions.

I fully understand that we are talking about a unique situation in many respects, given the challenges in investigating allegations. However, the rate of progress is an issue. The hon. Member for Newbury raised the issue of trails going cold on some of the investigations. We need to address that and face the reality that in some—indeed, many—cases, it might not be possible to get the evidence we need to establish whether an allegation is true. That might simply mean that the case cannot proceed, and I look forward to hearing what the Minister has to say about that.

Turning to the credibility and motives of those bringing complaints, which many Members have raised, I have concerns that there may well be instances in which the current system is being abused, and that spurious allegations are being brought against military personnel and service veterans. The answer lies in ensuring that we have a system in place that allows the prompt dismissal of cases that are brought on flimsy evidence or are not evidence-based. In cases where evidence is found to have been falsified or deliberately distorted, I would want to see penalties imposed for what I consider to be akin to the criminal charges of perverting the course of justice or, at the very least, wasting police time, or its equivalent in Scottish law.

As my hon. Friend the Member for Dunfermline and West Fife (Douglas Chapman) said, our legal system in this area must uphold the values of the European convention on human rights, as well as other international human rights treaties. We have to work with other nations to set an example of our values on human rights. Some Members have expressed the desire to derogate from the convention, but that is not the right way forward. The European convention on human rights was born out of the horrific events of world war two, which rightly made the international community think very carefully.

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

The hon. Gentleman is making a very good point, but the problem with regard to derogation is that it was specifically intended by the authors to allow for operations outside the territory. The danger of the argument he is making is that the Scottish National party is turning soldiers from cannon fodder into courtroom fodder.

[Steven Paterson]

I will resist getting into party politics. This is a serious case and I do not think that the hon. Gentleman made his point very well there—[Interruption.]

--- Later in debate ---

[The Minister for the Armed Forces (Penny Mordaunt)]

I thank my hon. Friend the Member for Newbury (Richard Benyon) for securing this debate. He is a doughty champion of our armed forces and a former member of their number. I also thank, in particular, my hon. Friends the Members for Tonbridge and Malling (Tom Tugendhat) and for Banbury (Victoria Prentis) who have spoken today and have been a great help to me in the work I have undertaken since May last year.

I also thank all hon. Members who have spoken in support of our armed forces today. We send them into harm’s way, dressed in body armour, to defend our freedom and national interest. It is not just their courage and capability that makes them the best; it is their values and the high standards we hold them to—values of self-discipline and self-sacrifice. Much of what they do in both war and peace is to uphold the rule of law, including international humanitarian law such as the well-known and well-understood Geneva conventions.

As a nation, we have chosen to invest in preserving and promoting those vital rules in armed conflict, ensuring they are reflected in all we do, and using our considerable reach to instil them in armed forces around the world. It is right that we meet the obligations on us to investigate credible allegations of human rights breaches, serious criminality and war crimes. How ironic then that those brave men and women, who do so much to protect and promote human rights and the laws that enshrine them, stand accused of wishing to exempt themselves from such obligations.

I will set out some of the shocking practices of those accusers, mainly two law firms, that concern us and what we are doing to meet our manifesto commitment. I will contrast that with the work of the Iraq Historic Allegations Team and provide an insight into its remit, its methods and some of the cases it has been dealing with which, if I do them justice, will reassure Members of the House and the armed forces.

I want to explain why protecting our armed forces from litigation motivated by malice and money is compatible with upholding human rights and the pursuit of justice, and that human rights and justice depend upon it. It is not about holding our armed forces above the law, as Leigh Day has suggested, but rather that we wish to uphold the primacy of international humanitarian law that helps to keep our armed forces safe, gives them the freedom to act in accordance with those laws, and protects human rights.

The ability to take prisoners, for example, is a well-understood good, and not being able to do so would have very grave consequences for both sides of a conflict. Any action that undermines or deviates from such rules is detrimental to our operational ability and to the safety of our own armed forces. We should make no apology for investigating and holding our armed forces to account for such actions. It is in our national interest to do so, as well as in that of the people who serve in our armed forces.

The steady creep of extending the reach of European human rights legislation, which was not written for conflict situations, is eroding international humanitarian law. The behaviour of parasitic law firms churning out spurious claims against our armed forces on an industrial scale is the enemy of justice and humanity, not our armed forces or the Ministry of Defence.

[Tom Tugendhat]

When I was interviewing various witnesses for the “Clearing the Fog of Law” report, the former Member, Jack Straw, was very specific about the reason for not derogating in advance of the Iraq conflict, which was that it was never thought that the European convention had extraterritorial jurisdiction. What other Members have called for—I particularly highlight my hon. Friend the Member for Banbury (Victoria Prentis)—is very reasonable in the light of that experience.

[Penny Mordaunt]

My hon. Friend is right, and he knows what he is talking about.

When the courts entertain claims against our armed forces of the likes of an insurgent bomb-maker suing us for not shooting him in a fire fight, but instead taking him prisoner and holding him until we could guarantee he would not face mistreatment in the local justice system, it is not just our armed forces who suffer the strain on them and the corrupting effect on their behaviour in the field; the cause of human rights suffers too. Today, when faced with the likes of Leigh Day and PIL, we need to wrap our service personnel in more than just body armour when we send them out to defend freedom.

Shortly the National Security Council will meet to decide on a number of options to address all the concerns that hon. Members have expressed this afternoon. Over the last eight months, extensive work has been going on in the MOD and the MOJ on these issues. Hon Members have mentioned some of the options that may be brought forward, and there are others.

Specifically with regard to spurious litigation being brought against our service personnel and the conduct of legal firms, the Prime Minister has announced that the Under-Secretary of State for Justice, my hon. Friend the Member for Esher and Walton (Mr Raab), and I will chair a working group to tackle every aspect of that, including conditional fee arrangements, legal aid rules and disciplinary sanctions against lawyers who are abusing the system or attempting to pervert the course of justice.

Against that backdrop, I understand that the work of IHAT has been tarred with the same brush. Hon. Members have spoken about why it was set up. It was to ensure that we have a domestic process as opposed to an international one. I want to give an insight into some of the cases, because they are illuminating.

In case No. 377, it was alleged that a passenger in a car was shot by an

“hysterical British soldier in a tank.”

That IHAT investigation ascertained that PIL had submitted the allegation in October 2014, despite Danish armed forces accepting liability for the incident and paying compensation in 2003.

In case No. 123, it was alleged that a 13-year-old girl had been killed when she picked up part of a UK cluster bomb that had failed to detonate. The IHAT investigation established that a 13-year-old boy had been killed, but was unable to ascertain whether Iraqi or UK munitions were responsible. PIL challenged the MOD’s decision not to refer it to the IFI—Iraq fatality investigations. The MOD defended the challenge on the basis of that information. Shortly before the hearing, PIL disclosed a witness statement by the boy’s father, made before the IHAT investigation, in which he said that the boy had been killed while in the vicinity of an Iraqi mobile missile launcher preparing to fire missiles into Kuwait that was destroyed by a coalition helicopter. There are many other cases that I could mention. It was concluded, after thorough investigation, that UK service personnel had acted in self-defence, in the defence of others, and lawfully.

IHAT enables us to meet our obligations to investigate serious wrongdoing, and its work is exonerating those wrongly accused and rejecting bogus allegations. I would add that the sniper case that my hon. Friend the Member for Newbury mentioned is not an IHAT case. Its investigators—a mix of service personnel, police officers and legal experts—are doing a public service, and I pay tribute to them. They feel their responsibilities keenly. Those investigators did not set up IHAT; we did. That was done not by anyone in this Chamber today, but by a previous Government, and for sound legal and policy reasons—there should be a domestic system of accountability, because without that there would be an international one. I hope that I have set the record straight on that. However, some questions remain for us, the politicians.

Does the existence of IHAT invite such claims? Were we not funding it, would fewer cases be brought? Why are so many cases brought and why are they so poorly researched, lengthening the investigation process? How can we speed that up? What support is given to our armed forces during the process? The work of IHAT is independent of the MOD, and we would not interfere with its investigations or work, but those are genuine questions to look at. It is right that we look at further ways of speeding up the process without compromising the quality of its output or its independence.

I can reassure hon. Members that we do all we can to support our armed forces through such investigations, and that support is also embedded in the practices of IHAT. It does give notice of investigations, and hon. Members must flag it up if they have heard of instances in which that has not been the case. Support that the MOD routinely provides to service personnel includes the funding of legal costs and, where appropriate, the funding of judicial reviews, as well as pastoral support. We fund medical assessments and applications to excuse from giving evidence veterans and serving personnel who are not medically fit to do so. Indeed, some in the judiciary have criticised the MOD for providing the level of support that we do provide. Those obligations remain, whatever the theatre in which the actions took place, whether it is Iraq, Afghanistan, Northern Ireland or elsewhere, but we recognise the cost of all this to our servicemen and women and to the public purse.

The al-Sweady case, in which our armed forces were exonerated and which resulted in Leigh Day being referred to the Solicitors Disciplinary Tribunal, cost the MOD and the British taxpayer £31 million to stage—£31 million, I would argue, that would be better spent on equipment and support for our armed forces. The status quo is financially unsustainable and morally unjustifiable. To put this right falls to us in this place, and we must all be resolved to do so. This issue and the solutions that we will bring forward are complex, but the objective is simple: we must protect human rights and we must protect those who defend them—our armed forces.