CONSERVATIVE
New Forest East

QUALIFIED STATUTE OF LIMITATIONS – 20 May 2019

Dr Julian Lewis: I pay tribute to my hon. Friend the Member for Southport (Damien Moore) for his initiative in bringing this debate to the House and for how he presented the case. I also pay tribute to all the subsequent speakers who, without exception, made powerful and well-informed contributions.

I wish briefly to answer, perhaps in part, the question posed by my hon. and gallant Friend the Member for Beckenham (Bob Stewart) in his extremely powerful contribution. He asked, “What are you doing about it?” I can perhaps throw a little light on one aspect: what the Defence Committee has been doing about it. As has been mentioned several times already, we have produced one inquiry report and had a response to it from the Government, and now we are working on another one. Why are we having to do a second report and a second inquiry into what amounts to largely the same material? It is because of something rather strange that happened when we produced our first report.

Our first report was produced in April 2017; it was the seventh report of the 2016-17 Session and it was entitled “Investigations into fatalities in Northern Ireland involving British military personnel”. I will read one of its conclusions and one of its recommendations. The conclusion was:

“It is clear from the experience of these legacy investigations that, unless a decision is taken to draw a line under all Troubles-related cases, without exception, they will continue to grind on for many years to come – up to half-a-century after the incidents concerned.”

We had to wait a long time for the Government’s reply, which eventually came in November 2017 – later than the two months that one normally expects. Their comment underneath that conclusion was:​

“The Government notes the Committee’s comment.”

More interesting and positive, however, was the Government’s response to the recommendation that I am about to quote from our original report:

“Accordingly, we recommend the adoption of” –

what we called –

“Option One – the enactment of a statute of limitations, covering all Troubles-related incidents, up to the signing of the 1998 Belfast Agreement, which involved former members of the Armed Forces. This should be coupled with the continuation and development of a truth recovery mechanism which would provide the best possible prospect of bereaved families finding out the facts, once no-one needed to fear being prosecuted.”

In other words, we recommended adopting what might loosely be called “the Nelson Mandela model” from South Africa.

The Government’s reply was as follows:

“While the Government believes that the most effective option to address Northern Ireland’s past is to implement the proposals set out in the Stormont House Agreement, the Government acknowledges that others have different views on the best way forward, including approaches such as that proposed by the Committee which do not involve recourse to the criminal justice system.

As such, the Government intends to include within its forthcoming consultation on the draft Northern Ireland (Stormont House Agreement) Bill a section entitled ‘Alternative approaches to addressing the past’. This section of the consultation will discuss alternative ways forward and include a description of the Committee’s recommendation. The consultation will invite respondents to give their views on ‘the potential effectiveness and appropriateness of alternative approaches such as amnesties and a statute of limitations” –

I am glad that the Government did not identify the two as being the same because, as the hon. Member for Belfast East (Gavin Robinson) made clear, they are not –

“to address the legacy of Northern Ireland’s past’. Following the consultation’s conclusion, the Government will consider all views carefully to inform next steps.”

I need hardly remind anybody present that that did not happen. When the consultation appeared, there was no reference to the suggestion of a statute of limitations. The only explanation I can find for that is that somebody behind the scenes lobbied someone in a position to make the decision for the option of a statute of limitations to be excluded. I know only what I saw in a newspaper report, which I think came out very recently, suggesting that there was some correspondence between the Prime Minister and other Cabinet Ministers.

What I have no doubt about is that, when our original report came out, the then Secretary of State for Northern Ireland, my right hon. Friend the Member for Old Bexley and Sidcup (James Brokenshire), subscribed to the answer that we received in the response. Subsequently, sadly, for medical reasons he temporarily had to leave the Cabinet and there was a change of personnel. I suspect – I put it no more strongly than that – that with a new Secretary of State, the people behind the scenes in the Northern Ireland Office felt, perhaps, that they had a better opportunity to kill a proposal that they may feel would somehow endanger what has been constructed to stop the terrorist violence of the past. I am unconvinced that that is an honourable approach for the Government to have taken.​

I make just one other point; so many people wish to speak that I do not wish to labour things too much longer. The reason why we immediately started another inquiry was that, when we saw that the consultation had come out without our recommendation even being included for consideration, we thought, “Right – if that’s the way the Government are going to play it, we’ll start the whole process all over again.” That is what we are doing, and we are at an advanced stage in our re-examination, although this time we are examining the wider picture of service personnel at risk of prosecution as a result of other conflicts in foreign countries.

I do not wish to understate the importance of the progress that the Government appear to have made in moving towards a solution to that problem at least. I welcome that, and I hope that they do not get cold feet about what they are proposing to do. It is good that the Government have worked together. In that respect, I pay tribute to both the previous Defence Secretary, my right hon. Friend the Member for South Staffordshire (Gavin Williamson), and the Defence Secretary before him, my right hon. Friend the Member for Sevenoaks (Sir Michael Fallon), both of whom took this issue very seriously. Under the previous Defence Secretary, a special unit was set up in the Ministry of Defence, as the Committee had long advocated privately, to try, as my hon. and gallant Friend the Member for Beckenham [Bob Stewart] said, to get a grip on this matter once and for all. As a Committee, we met informally with that unit.

Progress is undoubtedly being made. Understandably, we have the problem that people on the paramilitary side of the argument do not want any of their personnel to be pursued for anything that they did, but they are adamant that the servants of the British state must be prosecuted until the end of time. People who rightly point out that the servants of the British state had very different intentions from the terrorists naturally take the view that they do not want any equality, as we have heard expressed forcefully in this debate, between service personnel doing their duty and terrorists trying to destroy innocent people.

However, in one respect I slightly disagree. This is just my personal view, but I believe that one must focus on a piece of legislation that has not yet been mentioned: the Northern Ireland (Sentences) Act 1998. Under that Act, even if someone killed 50 people they cannot go to jail for more than a maximum of two years. I speak with some understanding of the position of families who lost a loved one under such unexplained and unresolved circumstances, because my family were caught up in the holocaust of the second world war.

I must say that I was not terribly keen on statutes of limitations for Nazi guards from Auschwitz, for example, but if somebody had said to me then, “There is no question of anybody serving a sentence that is in any way proportionate to murdering somebody, and in any way a recompense for doing that,” would I have felt that it was perhaps more important to bring out the truth than to try to send someone who did not want to tell the truth to jail for a derisory two years? I think I would have wanted more to discover what had really happened.

That is the strength of the Nelson Mandela approach, which was to understand that at a certain point we can heal society only by drawing a line, and find out the truth only by removing the threat of prosecution. When someone knows that as a result of prosecution the maximum sentence that can be imposed is so risibly ​disproportionate and lenient compared with the crime of which they would have been found guilty, it is easier than ever to understand that that is the civilised and sensible way forward.

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Johnny Mercer: ... The problem with a statute of limitations per se is that where clear evidential thresholds are met – when it comes to clear wrongdoing – we start entering difficult areas. We should at least start a conversation about it, but the Prime Minister has specifically asked my right hon. Friend the Chair of the Defence Committee not to do so.

Dr Lewis: I would not put it quite as explicitly as that, but it was certainly implicit in the way that our report recommendation was first put forward and then somehow mysteriously excised from the Government’s agenda. May I try to resolve the pointed issue and ask my hon. Friend whether he would accept the term, “qualified statute of limitations”? That is what the Government seem to be putting forward, that there will be a presumption against prosecution after 10 years have elapsed – hence the statute of limitations – unless new and compelling evidence emerges, hence the qualification.

* * *

Carol Monaghan: These investigations must not be time-constrained. The idea that after a set period of time a line is drawn under past incidents does not support the families’ need for resolution.

The Chair of the Select Committee on Defence made some interesting points in talking about the report. He mentioned a truth recovery mechanism. Such a mechanism will need to investigate incidents; regardless of what we do, there has to be some sort of closure for families and for victims.

Dr  Lewis: Does the hon. Lady accept that the great advantage of the truth recovery mechanism is that by removing the threat of prosecution, the truth is more likely to come out, so families will find resolution?

Carol Monaghan: The right hon. Gentleman makes an important point; I do not think any of us here want to see 70-year-old former soldiers going to jail. However, in order to get to the truth, there has to be investigation. He has to acknowledge that part of this is tied up with the Belfast agreement; we cannot start to make changes without having an impact on that agreement.

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The Minister of State, Northern Ireland Office (John Penrose): … The Select Committee Chair, my right hon. Friend the Member for New Forest East (Dr Lewis), was extremely careful in his views. He said that we need to make progress, and in fact we are making some progress, but we have not made nearly enough. He then mentioned the Nelson Mandela approach; I will come back to that point, because it is central to any potential action and solution that we may want to come to later. [ … ] Our answer must work for the victims and the families of the victims. We have heard some of that, but it needs to be emphasised. Most importantly, it must work in court so that, when the inevitable legal challenges come from the lawfare brigade, this thing is robust and stands up; if it does not, we will have failed in our duty to protect our former servicemen and women. There is no point coming up with something that sounds great, but falls over the first time a clever lawyer pokes it in court. That will not stand.

Finally – I have treble-underlined this in my notes – our answer must draw a line and allow people to move on. It must allow not only the victims and the veterans, but the whole society in Northern Ireland, to draw a line. That is why I come back to the point made by the Chairman of the Defence Committee. There is not an exact comparison between Northern Ireland, which is a unique place, and South Africa, but there are many parallels. We must find some way of creating an approach that will allow people to get closure, truth and justice.

What I hope and expect we will do is, first, to publish very soon the results of the consultation so we can all see what people in Northern Ireland genuinely think about the details of the questions. Secondly, promptly after that, I expect us to announce the Government response, which must be actions, not words. The Stormont proposals are a starting point, but there are genuine concerns on all sides about the details of those proposals. They cannot stand as they are, but they are a good starting point and we need to work on the details of how we modify them so that we can bring forward a Bill.