PROTECTION OF NORTHERN IRELAND VETERANS – 9 July 2019
Dr Julian Lewis: I rise to speak in support of Amendment 6 [to the Northern Ireland (Executive Formation) Bill], which stands in my name and the names of my right hon. Friend the Member for Sevenoaks (Sir Michael Fallon), my hon. Friend the Member for Plymouth, Moor View (Johnny Mercer) and 16 other Members. It relates to a topic that, by sheer coincidence, I was addressing the Chamber about on 9 July exactly 12 months ago to this day. That topic is the need for protection for our Service personnel against repeated reinvestigation of alleged offences committed during the Troubles, even though those have in many cases been previously investigated and there is little or no prospect of significant new evidence being forthcoming.
The Amendment speaks for itself. It suggests that there should be
“a report on progress made towards protecting veterans of the Armed Forces and other security personnel from repeated investigation for Troubles-related incidents by introducing a presumption of non-prosecution, in the absence of compelling new evidence, whether in the form of a Qualified Statute of Limitations or by some other legal mechanism.”
It is very important to note that the word “amnesty” does not feature in the Amendment. I was particularly pleased when, in another debate on this subject on 20 May this year, my hon. Friend, as I choose to describe him, the Member for Belfast East (Gavin Robinson), who is an authority on these matters, intervened to make the point strongly that what the Defence Committee has in mind – namely, a Qualified Statute of Limitations – is not an amnesty in any way, shape or form.
Gavin Robinson indicated assent.
Dr Lewis: I am glad to see him nodding.
Lady Hermon: Will the right hon. Gentleman give way?
Dr Lewis: Of course I give way to the hon. Lady, just as I did 12 months ago to this day.
Lady Hermon: I am very grateful. Since the right hon. Gentleman’s Amendment makes reference to “other security personnel”, will he confirm whether he and his colleagues have taken the view of the Northern Ireland Retired Police Officers Association, and will he elaborate on their opposition to any such amnesty or Statute of Limitations? That would be enlightening for the Committee.
Dr Lewis: I am afraid that we have got into a situation where people in Northern Ireland have become, to some extent, a prisoner of their own rhetoric. As I understand it, there is opposition to what people imagine is being proposed on the basis that it draws some form of moral equivalence between the forces of law and order and those people who went out, illegally armed, to commit terrorist offences. It does nothing of the sort. The only equivalence that anyone can or should read into such measures is the basic equivalence before the law that applies to everyone.
I have made this point before, and I am afraid that I am going to keep making it until one day more people accept it: already, in the form of the Northern Ireland (Sentences) Act 1998, such equivalence is quite clear. What that Act provides for is that if somebody has been convicted of not just one grave offence but even multiple murders, they might well be given a life sentence, but under that legislation no one will ever serve more than two years of that life sentence in jail. That has sometimes been thought to be something that applied to paramilitaries and terrorists but not to the Armed Forces, but in repeated debates on this subject it has been established very clearly and unambiguously in ministerial statements from the Front Bench that it applies to everyone. That does not create moral equivalence between the people it applies to; it simply creates the same equivalence before the law that applies to every British citizen, whether virtuous or villainous.
Emma Little Pengelly: We have just had the conclusions of the legacy consultation and the release of a summary of the findings. Does the right hon. Gentleman agree that part of the confusion on a Statute of Limitations is that, due to the narrative around this, people do believe that this is an amnesty, but in fact it talks about limiting some circumstances, on the basis of fairness, which is very different from the principle of amnesty?
Dr Lewis: I am so grateful to the hon. Lady, and delighted that I gave way to her, because she has put that far better than I could.
What we are trying to come to here is a reasonable conclusion that would mean that, should compelling new evidence emerge – something that was overlooked and has now come to the fore, and that puts a completely different complexion on an allegation of a serious crime – indeed that would still be pursued, but where matters had been looked at previously, and where there was no compelling new evidence, a line should be drawn.
There is one more element that comes into this, which is the question whether such a Qualified Statute of Limitations would conform to international law.
Mr Bob Seely: I am most grateful to my right hon. Friend for giving way, and I congratulate him and others on tabling the amendment. There are two issues here for me. First, on the point of fairness and equality, does he agree that it is deeply unfair that the state seems to be actively looking not to bring former terrorists to justice while actively looking to bring soldiers, who were there legally doing their job under the law, and protected by the law, to justice. Secondly – I talk to ex-Service friends about this often – is he aware of the appalling signal it sends that the soldiers who were doing their job are not being protected by the law, either recently in Iraq or 20 or 30 years ago in Northern Ireland?
Dr Lewis: I thank my hon. Friend, who is an expert in these matters, for that perceptive observation. Certainly, on the differentiation between people who were lawfully armed, trying to preserve the peace and the good order of society, and those who went out unlawfully to try to disrupt that, I believe that my right hon. Friend the Member for Sevenoaks will address that very point in some depth, because it goes to the heart of his amendment.
Lady Hermon rose –
Dr Lewis: I will give way only one more time, as other Members wish to speak.
Lady Hermon: I am exceedingly grateful to the right hon. Gentleman, who is being very generous indeed. I think that it would be very helpful if he, and indeed his colleagues, clarified how many members of the British Army have been investigated, re-investigated and prosecuted in Northern Ireland. I think the numbers would be very instructive and interesting.
Dr Lewis: I am not an expert on the subject, but I think that the numbers at the moment are very low, but the threat – the sword of Damocles – is hanging over a very large number of people.
That leads me rather neatly to the final point that I want to make, about conformity with international law, which does not require a prosecution but does require an investigation. That is why the Select Committee on Defence – we have a further report coming out that relates not just to Northern Ireland, but to the wider context of other campaigns – has always sought to combine the notion of a Qualified Statute of Limitations with that of a truth recovery process. What might loosely be termed the 'Nelson Mandela solution' means that we would satisfy the requirement for an investigation but remove the sword of Damocles hanging over someone’s head, because they would know that they would be required to say what they remembered of the events concerned, with an absolute assurance that no prosecutions would result. That would give the bereaved families the best chance of finding out the truth.
James Heappey: Will my right hon. Friend give way?
Dr Lewis: Very well, for the last time.
James Heappey: My right hon. Friend is very kind. I instinctively agree with the Amendment that he has tabled. I am concerned about a Statute of Limitation, because if case law were applied would the other side not claim access to the Statute of Limitation as well? I would be grateful for his thoughts on that.
Dr Lewis: I thought that by implication I had covered that point. The likelihood is that anyone before the law would be able to lay claim to the Statute, but the reality is that what my hon. Friend calls the other side – with their 'letters of comfort', among other things – are the last people who need to be worried about the present situation. We must not get hung up on the terminology. The people we have to protect are those where the records exist, but to whom 'letters of comfort' have not been given – our Armed Forces veterans.
In conclusion, I want to –
David Simpson rose –
Dr Lewis: How can I refuse the hon. Gentleman?
David Simpson: The right hon. Gentleman has made a good point about the 'letters of comfort'. I have to say that the 'letters of comfort' were given to republicans, but those who put on the uniform of the Crown forces are being pursued for doing their duty.
Dr Lewis: That confirms the very point that I was making, and it is why the main purpose of the Amendment, although arguably it might be cited by people who are unlikely to be prosecuted, is to protect our Service personnel, security forces and so on.
I would like to end – I really will end – by saying that I was encouraged in a debate in Westminster Hall on 20 May this year by the response of the Minister of State [John Penrose] to points of the sort that I have made today. He said that I had
“mentioned the Nelson Mandela approach; I will come back to that point, because it is central to any potential action and solution”.
He said that a solution
“must allow not only the victims and the veterans, but the whole society in Northern Ireland, to draw a line.”
“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.” – [Official Report, 20 May 2019; Vol. 660, c. 248-250.]
That is what my Amendment seeks to do, and I look forward to the Minister’s response.
* * *
The Minister of State, Northern Ireland Office (Mr John Penrose): ... I thank my right hon. Friends the Members for Sevenoaks (Sir Michael Fallon) and for New Forest East (Dr Lewis) for tabling Amendments 6 and 7 on veterans. There is broad agreement, after a couple of urgent questions and a couple of debates in Westminster Hall and in the House over the past month, that the current legacy system is not working well for pretty much anyone. The system has to change, and it has to provide better outcomes. The system has to ensure that everyone is treated fairly, particularly the Armed Forces and police officers.
The draft Bill on which we consulted last year would require a new body investigating legacy cases to do so in a fair, balanced and proportionate manner. We have just finished consulting, and we have published the responses in the past week. Interestingly, there were strong and widespread views against either an amnesty or immunity from prosecution, and both my right hon. Friends were keen, and rightly so, to make clear the difference between those two proposals and the ideas proposed in their Amendments.
There is widespread concern about former soldiers being pursued by vexatious and unfair court cases 40 or 50 years after they finish serving. Amendments 6 and 7 would require the Secretary of State to report on progress towards introducing a presumption of non-prosecution, and they would require the Attorney General for Northern Ireland to produce guidance on legacy cases with a presumption in favour of prosecution in cases where a weapon had been unlawfully obtained. That is a worthy attempt to make a distinction and to unravel the tendency in some cases for people to try to create moral equivalence between terrorists and Her Majesty’s Armed Forces.
It is important to be clear that the specifics of the particular or associated issues that are being proposed here did not form part of the Stormont House agreement. They were not recommended or supported widely in the responses to the consultation either. There are also some other technical concerns about whether the UK Government can direct the Attorney General for Northern Ireland – I think that is problematic. In principle, however, the point is this: I intend to take the two Amendments in the spirit in which I think they are intended. I think they are intended to be a valid and sincere attempt to move this issue forward.
It is time and past time that a solution was found to this issue. Whether or not the precise details of these specific proposals are approved of in all their details in the report or approved of only in part and other things perhaps brought forward instead is beside the point. The important thing is that these two reports could serve as a way to advance that cause, identify solutions and move this forward. It is overdue that we do so and I am delighted to support the Amendments. ...
VOTE: The House having divided: Ayes 308, Noes 228 ... Question accordingly agreed to.