New Forest East



Q1 Chairman [Dr Julian Lewis]: Welcome to this hearing on investigations into fatalities involving British military personnel. Before I ask the panel members to introduce themselves for the record, I would like to make a brief statement about what this session intends to do. Although the inquiry is concentrating on investigations into fatalities concerning members of the British Armed Forces, our main focus in this session will be on identifying the options that are available to Ministers to prevent former service personnel from being subjected to further investigations when matters that had been disposed of because they were investigated previously have been reopened – or it is proposed to reopen them – without any new evidence being provided. Our work intends to build on the Committee’s report into IHAT [the Iraq Historic Allegations Team] and the recommendations contained within that, and in particular those aimed at countering the expansion of what is known as “lawfare” in historic investigations.

The inquiry is therefore of a technical nature, focusing on what options are available to the Government. We are not seeking to revisit the Belfast Agreement or to opine upon the broader issues arising from the legacy of the Troubles. Will the four panellists identify themselves for the record? …

Professor Sands: I am Philippe Sands. I am a Professor of International Law at University College London and a barrister at Matrix Chambers.

Professor Rowe: I am Peter Rowe, Professor Emeritus of Law at Lancaster University.

Professor McEvoy: I am Kieran McEvoy, Professor of Law and Transitional Justice at Queen’s University Belfast.

Professor Ekins: I am Richard Ekins, University of Oxford and head of Policy Exchange’s Judicial Power Project.

[ … ]

Q2 John Spellar MP: The United Kingdom is a signatory to a number of international legal institutions, such as the International Criminal Court and the European Court of Human Rights. What obligations do those bodies create for the UK in investigating criminal allegations made against serving and former members of our Armed Forces?

Professor Rowe: Perhaps I could make a start on that. You are quite right: we are parties to those international agreements. As far as the European Convention on Human Rights is concerned, there is the procedural obligation in articles 2 and 3 to investigate potential crimes. There are issues as to when the investigation should begin and the nature of the investigation, with the object of accountability of state agents for, in article 2, acts of killing, and, in article 3, acts of torture, and so on.

We know that the International Criminal Court has an obligation, because we are members of and our soldiers will be subject to the ICC, subject of course to the principle of complementarity. That is, if we, the British, are seen to be conducting our own investigations into alleged crimes that occur or that are set down within the Rome Statute, then the Court will not have jurisdiction; but individuals can make complaints to the International Criminal Court and that has taken place, as we are all aware. … My own view is that, as far as the UK is concerned, I would be surprised if any case from the UK went to the International Criminal Court. 

Professor Ekins: I cannot speak for the International Criminal Court, but the European Convention on Human Rights and the European Court of Human Rights have jurisprudence. Strictly, the text of the ECHR says nothing about an investigative obligation. It was novel when in 1995 the Court wrote that in, or took it to be implied, by the text of article 2. To my mind, that was an unsound construction of what was agreed to by the United Kingdom and other member states. As the Court said in 1995, it gives rise to an investigative obligation and at that stage it was not terribly precisely spelt out. Subsequent jurisprudence does spell it out and requires independent, effective, transparent investigation. … It is certainly clear that it is part of the Strasbourg Court’s jurisprudence that there is an increasingly far-reaching and specified investigative obligation, although the details thereof do matter and may leave more room for options than one might think. …

Professor Sands: I will come in on article 2, and beg to disagree. There is no real novelty in the interpretation of article 2. What the European Court does – it looks precisely to what states do as a matter of domestic law in interpreting and applying their international obligations. The decision back in the ‘90s, in McCann, really simply takes forward what happens as a matter of national law – to take your question, Mr Spellar: that the obligation to protect the right to life necessarily implies that, if there is a question as to whether it has been adequately protected, there is obviously a corresponding duty to ascertain the circumstances. The obligation to investigate is not an obligation to prosecute. It is not an obligation to take any particular steps. It is simply an obligation to find out the facts of what has happened, and ascertain.

[ … ]

Q9 Chairman: Thank you. I would like to zero in now on Northern Ireland and the circumstances that apply there. We are talking about the prospect of just over 300 cases where service personnel were involved in fatal shooting incidents. We are obviously particularly concerned with the period of the Troubles up to the date of the Belfast Agreement in 1998. If we are looking at that, we are talking about cases that occurred almost 20 years ago at the latest, and in some case 40 years ago. By way of preamble, so you understand exactly what we are trying to get at, we have with us Johnny Mercer, who led our sub-Committee’s inquiry into the Iraq Historic Allegations Team and successfully recommended that it should be closed down. The issue was not one of people being prosecuted long after the event, because I think I am correct in saying that in that case nobody was prosecuted long after the event. The trauma all lay in the investigative process that in the end led to nothing.

[ … ]

Q16 Chairman: May I clarify a point of law? It seems strange to have an article of a convention on human rights enshrining the right to life applied in a warzone – which this is not. If the right to life had applied during the Second World War, we would not have been able to fight any of the battles that were fought in that conflict. In a wartime situation, the law that applies is what I think is generally known as the Law of Armed Conflict. I believe it is now called International Humanitarian Law but, if you don’t mind, I would rather keep calling it the Law of Armed Conflict, because that makes it clearer – there are so many humanitarian terms flying around here that it is easy to get confused about which convention we are talking about. Just for the sake of clarity, what we are saying here is that in Northern Ireland, because this was not a warzone – this was the Army acting in support of the civil power – the Law of Armed Conflict does not apply and the civil law does apply. Is that basically the situation? Would someone like to explain it to me?

Professor McEvoy: As you will be aware, there was significant controversy – indeed, there still is – as to whether to term the Troubles in Northern Ireland a conflict or a war or a terrorist campaign, and so on. Successive British Governments were determined not to apply Humanitarian Law and to maintain the position that the Army were there operating under the normal domestic law, albeit amended by emergency legislation. The position of successive British Governments was not to apply Humanitarian Law.

Professor Rowe: I would support that. The British Government have always taken the view that in Northern Ireland the Law of Armed Conflict did not apply. Otherwise, it would have been a non-international armed conflict. They saw this situation as one of criminality and the ordinary criminal law applying to it, admittedly enhanced by terrorist legislation. That puts it in a category apart from what you might normally call armed conflicts. … As you will be aware, the European Convention on Human Rights, by extending the meaning of “within jurisdiction”, has of course included certain what we might call armed conflicts within the European Convention net, but in my view this would not cover what might be called an international armed conflict, where the people the British Army would be dealing with would not be within jurisdiction. That would be governed solely by the Law of Armed Conflict and not the European Convention.

Q18 Chairman: Fortunately, whatever we think about the application of the European Convention on Human Rights to far-flung conflicts, on this particular occasion we know that this has been classified as a matter of aid to the civil power and not an armed conflict, and therefore we have to deal with the fact that the ECHR does apply to the circumstances we are talking about.

Professor Ekins: That is a very good point. There is, in one way, no controversy about the ECHR applying to Northern Ireland in the way that there is controversy about it applying in Iraq, Afghanistan and elsewhere. There is no surprise, in one way, in the ECHR coming to bear in Northern Ireland.

[ … ]

Q20 Chairman: Can you just explain this to me? We are accepting the fact that the ECHR does apply to the circumstances in Northern Ireland to these 306 cases – it might not have been exactly that figure but we will use that for the time being. Those 306 cases are covered by the ECHR. Under what circumstances does article 2 of the Convention require that cases be reinvestigated if they have already been disposed of through legal processes? Presumably it does not require it if they have gone to court and the person has been found not guilty, but very few of these cases go to court, as we know. We are concerned about the trauma of a long investigative process of 20, 30 or – in the case of half of these incidents –  more than 40 years after the event. What are the circumstances under which we could be in breach of article 2, if we did not reopen these cases?

Professor McEvoy: The article 2 jurisprudence spells out a range of criteria by which an article 2-compliant investigation is adjudged to be effective and lawful. It is complex case law but the criteria within that would include that the investigation be independent, prompt, transparent and effective. Effective is defined in the jurisprudence as – and this is an important point –  

Q21 Chairman: I just want to ask about that first one. You say it must be independent. Let’s try to clothe this in concrete terms. I will deliberately set this up as the killing of a guilty terrorist. An incident happens 40 years ago, where somebody shoots at a soldier, the soldier draws his gun and shoots the person dead. He then reports what has happened and the matter is looked into by the service authorities. They find that the solider acted perfectly properly. That is not an independent investigation, is it?

Professor McEvoy: No.

Q22 Chairman: So, what you are telling me is that, even under those circumstances, where there is a fire-fight 40 years ago and the soldier draws his weapon and shoots dead someone who shot at him, according to article 2 of the ECHR that matter should be re-investigated 40 years later. Is that not a ridiculous situation? 

Professor McEvoy: Go ahead.

Professor Ekins: Well –  

Chairman: Professor Sands.

Professor Sands: It is important to situate this.

Q23 Chairman: I am asking you about that very specific example.

Professor Sands: To answer that specific example, you have got to situate it in a broader context. There is a legal answer and there is a political answer, and the two are interrelated. You can have the right political response and the wrong legal response. You can have the right legal response and the wrong political response. These things are really complex.

Q24 Chairman: Exactly. Please explain.

Professor Sands: I want to put this momentarily into the broader context. I have noticed a couple of times that you said that these things happened a long time ago. I have spent the past 25 years working on conflicts around the world, and if I have learned one thing, it is that things that seem to me, as an outsider, to be innocuous things that happened 50 years ago can have spill-over consequences over time. It is a complex matter for your Committee in this situation to balance a lot of different things. On the one hand, very reasonably, there is a desire to bring things to a close, to help people move on by saying:

“That’s it; enough is enough.”

On the other hand, the danger is that, by bringing it to a close in the wrong way, you exacerbate the situation. Your Committee is involved in a balancing exercise. This is not Iraq; this is at home.

Q25 Chairman: Not quite, though. As I have said before, we want to establish today what the Government can do rather than what the Government should do. I don’t really want to have a morality debate here about whether 40 years is too long to pursue a veteran who may have done something wrong at that time and been investigated, but not sufficiently independently for the purposes of the ECHR. What I want to get out of you, gentlemen, with the greatest respect, because you are experts in the law, is not what political decision you think should be taken, but what the law says.

I am going to come back to my case, which is a terrorist – I am not saying whether it is a loyalist or a republican – who opens fire on a soldier 40 years ago. The solder draws his weapon, returns fire and kills the terrorist. No action is taken because of those circumstances, but for the purposes of the ECHR that has not been independently investigated. Is there any way in which the Government can say:

“We do not propose to revisit this matter”?

Professor Sands: It depends on how it says it and on exactly what it says. Let us home in on the specific reasoning. I am very grateful to Professor McEvoy for drawing our attention, on page 11 of his paper, to a judgment last Friday – 3 March – of the Northern Ireland High Court. It is at the bottom of the page. This is a slightly different factual scenario from yours, but it allows us to tease out the issues and I will then come back to your example. Mr Justice Maguire held, in a case involving allegations of the involvement of the Army’s military reaction force in shooting an unarmed civilian in 1972, that both the HET and the LIB lacked the required elements of independence to perform an article 2-compliant investigation of the case. The judge concludes at paragraph 109 that there was no evidence to suggest that the deceased was other than a wholly innocent person – it is a different case from yours – who was in the wrong place at the wrong time. However, the awkward truth in this case is that the system for investigating serious crime has let her and her family down now over a period of decades.

That principle, regrettably, applies equally to your fact scenario, because your fact scenario embeds certain assumptions when only an independent investigation can ascertain what the facts are. It is chicken and egg. So the general principle that is implied in this recent judgment is the right principle – I would say it is also in relation to your case example. You need an independent mechanism. That does not mean a prosecution – there are lots of different ways of carrying that out – but the short answer from my perspective is: the Government does not have as an option simply to close down all investigations because the Government believes they meet certain fact patterns or because they occurred beyond a certain period of time. That option, in my view, is not open to you.

Professor Ekins: I am not sure that it is so clear. I would say that the scenario you outlined precisely – not an independent investigation – would be held now to have been in breach of the ECHR. I do not think it follows, however, that the failure to reopen an investigation now into that same fact pattern is a new breach or a continuing breach. It is less clear in the case brought to my mind – although my colleagues may disagree; it is complicated case law – that there is a continuing obligation to investigate matters that were not properly investigated at the relevant time.

Certainly, there are some times when new evidence comes to light – the Brecknell case and others – and there is an obligation to open a new investigation. If one chooses to open a new investigation, as has often taken place, then the article 2 requirements are held to come to bear. In the case Professor Sands outlines, because there is an investigation under way, it has to meet an article 2-compliant standard, because otherwise it will be held to be unlawful at least as a matter of Strasbourg jurisprudence and possibly as a matter of the Human Rights Act giving partial effect to it – that is tricky again. But that is because there is an investigation ongoing. It is not quite so clear to my mind that there is an obligation to investigate in the first place.

Professor McEvoy: Just to come in on your big picture point on our role as lawyers to advise on what can be done and leaving the morality aside, you will see in my own paper that I have tried to look quite pragmatically at this space for imagination around the legitimate concerns that people have, particularly about prosecuting people for events that took place four decades ago. First of all, there are significant legal difficulties in achieving successful historical prosecutions. That may be small comfort to soldiers who are being arraigned, but it is very difficult to make a historical case stick. That is one point.

Secondly, where the space for legal imagination happens is not, as Professor Sands says, at the investigation stage. Families have a right to an article 2-compliant investigation. However, the article 2 jurisprudence, very importantly, does not require punishment necessarily; it requires a case that could potentially lead to punishment, and that is where the space for creativity is. It is not in the investigation – not in the truth-recovery functions of investigations – but in what happens on the other side. I can come back to that in more detail later if you wish.

Professor Sands: May I elaborate specifically on that, because it is also the situation in other parts of the world? Take, for example, Argentina and Chile, which have similar or analogous experiences. There, the problem is not, as Professor McEvoy said, whether you do or do not have an investigation; it’s how that investigation is carried out. For example, a process of truth and reconciliation, the sharing of information that allows the teasing out of the facts, can be sufficient. It does not require a criminal prosecution to follow, provided it meets certain minimum guidelines.

[ … ]

Q36 Chairman: We have been talking all the time up to this point about the ECHR. Is anyone seriously suggesting that the British Government are likely to find themselves before the ICC if they do not reopen all these investigations, or can we at least put that one to bed? 

Professor McEvoy: I think you can put that one to bed in the context of Northern Ireland. 

Q37 Chairman: Right. I just want to get this absolutely clear. If the Government say to this Committee, 

“We cannot do this because we will end up in front of the International Criminal Court,” 

that is nonsense. 

Professor Rowe: That’s right. 

Q38 Chairman: Why is that? 

Professor McEvoy: In the context of Northern Ireland? 

Chairman: In the context of Northern Ireland. 

Professor McEvoy: [Interruption.] Sorry, Professor. I think we are going to be saying the same thing.

Professor Rowe: Yes, I think so. It is because the International Criminal Court began in 2000, or was it 2002? 

Professor McEvoy: 2002. 

Professor Rowe: Sorry, 2002. It has no jurisdiction over crimes committed before that particular time. 

Chairman: Right, that is very helpful.

[ … ]

Q42 Chairman: We are getting back to the question of “What should we do?” I want to concentrate on “What can we do?” Your collective answer to Johnny’s question appears to be that the only way you can escape from article 2 of the ECHR is actually to leave the ECHR. Do you all agree with that?

Professor Ekins: … I do not think derogation works, but the obligations under the European Convention are obligations in national law. One could take the view that the European Court has misconstrued article 2 and that Britain is simply not going to conform to rulings that are adverse on that basis. 

Q43 Chairman: So we could just defy them and not necessarily be thrown out? 

Professor Ekins: It is a possibility. There are risks to it, plainly, but it is a possibility.

[ … ]

Q46 ChairmanOkay. Where we were at before was that if we wanted to stop article 2 applying to these cases, even those from 40 years ago, we would either have to leave the ECHR or we could actually defy article 2 and argue a good reason for doing so. Professor Ekins, you were saying this.

Professor Ekins: It would not persuade the Strasbourg Court, so one would end up in a position where the European Court thought one was in breach, as is the case with prisoner voting. 

Chairman: But they think we are in breach over not giving votes to prisoners, for example. 

Professor Ekins: Indeed. I think one has to be careful before one concludes that there is a continuing obligation to investigate all cases simply on the grounds that they were not investigated according to article 2 standards at the time of the investigation. New evidence is a different matter from simply having another look at the material because it was not looked at in accordance with an article 2-standard independent person answerable at the time.

[ … ]

Q52 Chairman: Can we distinguish between two situations? We have talked about the business of new evidence and that that might justify it. When we are talking about new evidence arising in an old case, are we simply talking about something happening and, unlikely as it is, there is DNA stuff in the old file that couldn’t be analysed then but can now – in other words, some new evidence has been presented – or are we talking about carrying out a re-investigation of the whole thing in the hope of turning up some new evidence? Those are two very different things, aren’t they? Which are we talking about?

Professor Sands: I think we are talking about the former, in the form of either new scientific or technical evidence or a new witness or fact emerging. We are not talking about carrying out an investigation in order to find new evidence. 

Q53 Chairman: But Professor Sands, that would appear to suggest that these 306 cases ought to be left alone unless or until somebody comes forward with new evidence, or should at least be confined to just looking at the existing archive to see if any evidence spits out at you. 

Professor Sands: Or there is a middle ground. Unless someone is saying, and I don’t know whether someone is saying, that the existing assessment – the prior assessment of the existing evidence – was in some way inadequate.

Q54 Chairman: But if that is all we are talking about, that should not involve having to go out and interview witnesses or anything of that nature at all, unless or until something new is found in the archive or someone comes forward.

[ … ]

Q68 ... Professor Ekins: I don’t think there is necessarily a continuing obligation to investigate to article 2 standards.

Chairman: Professor Rowe?

Professor Rowe: I am not clear [that] if the case came before the European Court of Human Rights it would say that the obligations in relation to investigation would apply way back in 1970. It might do. I can’t be sure. None of us can be sure what view it would take. One must not jump to conclusions. Admittedly the investigations were not, or may not have been, independent at that time, but the decision – if there was some form of investigation, I am not sure whether I agree that it was entirely managerial.

For example, let’s say that the Royal Military Police at the time investigated whether the soldier had complied with his rules of engagement and they took the view that he had, having taken into account what is required, which is – as the courts have said over a number of cases – whether the soldier had an honest and genuinely held belief that when he used force, it was reasonable in the circumstances. If it turned out to be a mistake, the courts take that into account, and the courts illustrate that point well. That is not a point of law that applies just to Northern Ireland. A good example would be the Gibraltar case in 1985. The soldiers there were found by the coroner’s court to have complied with their rules of engagement and article 2.

[ … ]

Q73 Johnny Mercer MP: The only people this process is actually serving are the lawyers; because it is not working for families. It is not getting justice. It is not getting justice for those who perceive that they have been wronged, and at the bottom the people who are bearing the price for this are the blokes who are sent out there to serve.

Professor Sands: All I was shaking my head at was the idea that anyone is getting involved in this just to make money.

Q74 Johnny Mercer: I have seen that evidence.

Professor Sands: There may be some people –  

Johnny Mercer: “Go and get trained up in Northern Ireland, because there is money to be made.”

Professor Sands: Frankly, I don’t think most people are doing that. Can I refer you to paragraph 21 of the Stormont House Agreement, because that takes us back to first principles? This is what the participants agreed. They agreed that

“As part of the transition to long-term peace and stability…an approach to dealing with the past is necessary”

and they identified a number of principles. The task for this Committee – and it is a really important task – is to balance the interests of soldiers who are exposed, because of these things that hang over them; it is a very legitimate thing to protect. But it is also legitimate to protect the interests of victims; and it is a difficult balancing exercise.

Q75 Chairman: I am sorry, I must interject. That is not the task of this Committee. We are not responsible for overall policy in Northern Ireland. Our task is to find what the options are for protecting British soldiers from prosecution 40 years after the event. It may well be that other people above our pay grade decide that none of those options should be taken, for the sort of reasons that you are talking about; but it isn’t our role to do that, even though it may add to our understanding as to why we are in this situation.

Professor Sands: Indeed, but it is your role to work within the Good Friday Agreement. That role commits you to doing a number of things. 

Chairman: No, with respect, it isn’t. We set the terms of reference to our own inquiries. The terms of reference that we have for this inquiry are to explore what mechanisms are available to the Government to stop what seems to us to be the persecution of serving personnel an unconscionable amount of time after the event. It is the role of the Government to take in these wider factors. We are putting in our piece of the jigsaw.

Professor Sands: So would that piece in the jigsaw include proposing amendments to the Good Friday Agreement and the Stormont House Agreement?

Q76 Chairman: Let’s go on to that now. At a later stage we will be discussing one particular point and I am anxious to do so before you leave us, Professor – that is, the question of a Statute of Limitations. …

Q77 Johnny Mercer: On the Northern Ireland agreement, the average person in the street has a perception that we have given those who have committed crimes on one side of the argument a different deal from those who served the state. What is the reality behind that? If we have to amend the Good Friday Agreement – we are looking at all the options. As the Chairman said, we are not the Government. If you amend the Good Friday Agreement or whatever, is there any mechanism available to the Government to apply the same set of rules and regulations that has overseen the release of prisoners and so on, to certain personnel? That is not equating them; no one is talking about the moral argument; we are just asking whether that is possible.

Chairman: Just to clarify, Johnny, if a terrorist has killed 16 people and gets prosecuted, for example, they are let out after two years. Is that right?

Johnny Mercer: That’s exactly right.

Chairman: Whereas if a soldier has killed one person wrongly and they are prosecuted, they serve a life sentence. Is that what you are referring to?

Johnny Mercer: Yes. Do you see the imbalance that that appears to be, to the average man on the street in the United Kingdom?

Professor Sands: Plainly, balance is what is needed. If there are those imbalances, that is a problem.

Chairman: There are.

Professor Sands: There are – that is a problem.

Q78 Johnny Mercer: What can we do about it?

Professor Sands: That’s what we are here talking about. I was under the misapprehension –  

Johnny Mercer: What, in the legal world, can we do about that? We have identified the problem. What is within the realms of possibility?

Professor McEvoy: I can say something very concrete about this, if you want. I have looked quite closely at this issue in particular. There is the potential – for me, as I have already suggested, the way forward is to implement the Stormont House Agreement, and go through that process of historical investigation. If there is sufficient evidence for a prosecution the prosecutor makes a determination – a judge makes a determination. The rule of law is upheld. However – and this is what you are pointing towards – where the flexibility lies is in the architecture of the Good Friday Agreement around the mechanisms that were there for releasing prisoners. That mechanism was a Sentence Review Commission – an independent commission that made a determination. It would be possible to amend the terms of reference for the Sentence Review Commissioners to take into account a range of other variables. The kind of variables that one could include might be age or the length of time since the offence occurred. 

For me, it would also be important that the truth recovery elements of the broader architecture were not impeded by this. It might also be possible – although this is not in the Stormont House Agreement – to nudge either former state actors or, indeed, former paramilitaries towards one of the other mechanisms. Another mechanism in the Stormont House Agreement is the ICIR, which is the Independent Commission on Information Retrieval. It is modelled on the “Disappeared” commission in Northern Ireland. Essentially it means that victims can approach the commission looking for information about their case. If the perpetrator agrees to take part in that process, none of the information can be used against that person for a prosecutorial purpose. …

Q79 Johnny Mercer: Yes, so you say if you have the right people in the right places with the right imagination and the will to do it, this can be resolved.

Professor McEvoy: I think this issue can be resolved, yes.

Q80 Madeleine Moon MP: I want to look at what principles the Government should be looking at to underpin the investigation of the Historical Investigations Unit to prevent us from having a repeat of what happened with IHAT. What happened there was almost a get-rich-quick scheme and harassment took place. We are desperate to prevent that from happening again. What are the principles that should underpin the unit that would make sure, as far as possible, that we get some of the justice that you have talked about for those who were shot and give their families the opportunity to explore what happened and whether an illegal action took place, but at the same time protect individual soldiers from judicial harassment where there is no need for it – where there has actually been full process and there is no action to answer for? What can we do?

Professor Sands: I’m afraid I am about to have to go. I think that what you ought to look very closely at is a move away from criminal law as the means of doing this. The way that these things have worked in other jurisdictions is variations on mechanisms of truth and reconciliation, in which people come forward with information and, as part of providing that information, effectively take themselves out from a criminal process. That has worked in several jurisdictions, it is much more cost-effective, it tends to create harmony rather than discord, it is quicker and it is cheaper, if –  this is the crucial point – you can get political will by the participants.

Q81 ChairmanBut if they won’t agree between themselves in relation to the crimes of republicans and loyalists, is it an option for us to do that just for the solders? As you know, they are our concern in this inquiry.

Professor Sands: Coming back to the realities, as a legislating Chamber you can do whatever you want. You are sovereign. Would it be a wise thing to do? Absolutely not. You will exacerbate the disharmony.

Gavin Robinson MP: Sorry, say that again.

Professor Sands: I think you will exacerbate the situation. If you adopt a Statute of Limitations on only one side and not across the board, you will just store up further difficulties. The need for balance is essentially the problem that you have.

Q82 Gavin Robinson: I hope you don’t mind me pursuing that, Chair. We have a situation where in 1998 there was an agreement. We did not support it, but the agreement is there. It has a disproportionate balance in favour of paramilitaries and those who brought mayhem to our streets. It was swallowed by people who believed in peace but was not supported by my party or by a large section of the community. You then had the British Government – a Labour Government – doing everything in their power to provide an off-book scheme that would give protection to on-the-runs, who have never been investigated, have never been pursued and for whom there are still extradition orders sitting out there in countries around the world, including the Irish Republic, which is meant to be our nearest neighbour and a co-guarantor of what is a balanced agreement. This proposal is not going to cause disharmony or imbalance; this proposal is to bring a level of balance.

Professor Sands: May I just focus on one point? We have all read about the off-the-books stuff. I have read what I have read – what is in the public domain. The crucial –  

Gavin Robinson: It wasn’t even off the books, of course; there was legislation tabled in this House of Commons.

Professor Sands: There are also other allegations about agreements that were cut behind the scenes. We are all aware of that. That is inherently problematic. The need for transparency in how it works is absolutely core. If you have secret agreements with one side, that is a recipe for disaster.

Q83 Chairman: Thank you for your very stimulating contribution today, Professor Sands. Before you leave, could you give us a quick opinion? We will come to this in more detail after you have gone, I am afraid, but is there any legal reason why the Government could not decide to bring in a Statute of Limitations, either just for all military involved in Troubles-related episodes up to the date of the Belfast Agreement, or for republicans, loyalists and military?

Professor Sands: I wish I could give you an absolutely clear answer. I think the answer I would give you is that there may or may not be.

Chairman: No wonder you’re a QC.

Professor Sands: The devil is in the detail. It depends how you do it. I think one issue that would immediately arise would be that, if it is only on one side – I am not saying which it is – you would get into a difficulty under domestic UK law on discrimination. To essentially say that one category of persons is off the hook simply because they belong to that category –

Q84 Chairman: Well, we are doing that already with the differential sentences for murder, are we not? The soldiers serve a life sentence and the criminals get out after two years, so we are doing a bit of differentiation there.

Professor Sands: I am not sufficiently expert on that area, so I am going to defer, but there is a problem once one discriminates. If you are inclined to go for a mechanism, you need to find a mechanism that is applied in the round more or less evenly.

Q85 Chairman: This is my last question to you on this – as I say, gentlemen, we will be coming back to this shortly. If we tried to bring in a Statute of Limitations for everybody, but it could not be agreed in Northern Ireland –  I think I am right in saying that they have jurisdiction on whether it would apply to the loyalists and the republicans – we could bring it in for everybody, but it would not be applied to those two groups because of the powers that the Northern Irish have in relation to them. We might then end up, de facto, in the position that we were protecting the soldiers but not the other two groups. Would that be the fault of the Northern Irish politicians and not the fault of Westminster?

Professor Sands: Well, you can pass the buck, but if you are really serious about going down that route, you might have someone talk to you about the experience in places like Chile or South Africa. Whether you call it an amnesty or a Statute of Limitations – whatever you want to call it – it tends to work where it is coupled with a process which allows information to come forward. The mere act of curtailing legal process and not creating some other means to allow the information to come out –  

Q86 Chairman: So we could put forward a Statute of Limitations for everybody, which may or may not get through the Northern Irish Assembly in relation to those elements – to republicans and loyalists – and we could set up a forum at the same time, saying:

“As a result of the fact that you now know that you will not be prosecuted, please come forward and help clear up some of these unanswered questions.”

We could do that.

Professor Sands: Or variations on the theme.

Chairman: On that note of agreement, thank you very much, Professor Sands.

Q87 Mrs Moon: Before you go, Professor Sands, I have a number of questions that I am going to pose now, and I know colleagues have questions. Would it be possible for us to send you the text of the proceedings and for you to come back if you have any comments?

Professor Sands: Whatever reasonable disagreements there may be, I think everyone wants to find a way to make things move forward in a decent and proper way. That is clear.

Q88 Johnny Mercer: And if the Government left the Committee to it, we could sort this out.

Professor Sands: Absolutely. You can absolutely count on my support, and I can recommend other people who have worked much more closely in South Africa and Chile, who faced exactly the same problem in relation to forces, armies and police officers who have faced difficulties. How do you deal with this real issue?

Chairman: Thank you. I hope you feel your time has been well spent.

Professor Sands: It has indeed. Thank you all very much for your questions.

[ … ]

Q96 Chairman: … We have been considering some of the pitfalls and mechanisms in carrying on investigating these cases. We slightly went ahead of schedule because of Professor Sands having to leave. With the remainder of our time, we want to talk about the legal practicability – not the political ramifications – of bringing in a Statute of Limitations for Troubles-related incidents, until at least the date of the Good Friday Agreement.

To recap, we have heard previously that none of this relates to the International Criminal Court, so that is out of the picture. We have heard in relation to the ECHR that there might be problems with article 2, but it also appears that we could, in principle, decide to do what we did on the votes for prisoners issue, which is simply to say to the European Court of Human Rights:

 “We are not prepared to take your view on this matter”

 – we can simply defy it. I have not noticed any great ramifications from our defiance over giving votes to prisoners, and I suspect the same would happen here, but we would like to know your view on that.

Gavin will lead on this question. Professor Sands seemed to say that there was no legal bar to our legislating for a Statute of Limitations. If the Westminster Parliament did it, the question would arise of whether we could, not should, just do it for the soldiers or whether we could do it for everybody. If we did do it for everybody, was I right in what I said earlier about the Northern Ireland Assembly having powers in relation to having to sign off such an issue with regard to Northern Irish citizens? If they declined to do that in Northern Ireland – I know Gavin has problems with some aspects of that – would that necessarily prevent the Westminster Parliament, having got the legislation through, from saying in relation to this matter:

“It is a clean break. A line has been drawn and there shall be no further investigation or prosecution of Troubles-related incidents involving the Armed Forces”?

Professor McEvoy: I have gone into this issue in some detail in the paper that is before the Committee. First, on the Statute of Limitation that was discussed in the House of Commons last week or the week before, it is an amnesty.

Q97 Chairman: We do not wish to get into any of that. We are asking about the legal position, not the political connotations.

Professor McEvoy: Absolutely. It is not a political point; it is a legal point. If it walks like a duck and it quacks like a duck, it’s a duck. So the Statute of Limitation as proposed is an amnesty. That is fine. I am a pragmatist on amnesties. I think that amnesties are useful, too, in conflict transformation. You can design amnesties in a way that is human rights compliant. It requires some careful attention, so a Statute of Limitation could be designed in a way that is human rights compliant.

Q98 Chairman: So when the Secretary of State says to us, as he has sometimes in the past:

“I simply don’t have the power to do this”,

that is not right?

Professor McEvoy: As Philippe said earlier, Parliament can stop him. Parliament has the power. In the design of a carefully crafted Statute of Limitation, first it is outside the terms of the Stormont House Agreement. As far as I understand it, none of the political parties argued in favour of that, so you have a significant political issue, but that is a political issue. Parking that for a moment, the kind of things that one looks to in a Statute of Limitation are an amnesty to see whether or not it could be legitimate. Does it try to negate the right to truth – the article 2 right to an investigation? If your Statute of Limitation does that and in effect negates the article 2 rights in terms of truth recovery, not prosecution, then I do not think it is law. That is your first significant challenge.

Q99 Gavin Robinson: Having considered it two weeks ago, you would have realised it was framed for those cases that have been previously investigated.

Professor McEvoy: That takes us back to our earlier conversation about what constitutes an effective investigation and whether or not it is article 2 compliant.

Gavin Robinson: Presumably you could pass a Statute of Limitation. If it was for 20 years and applied to Operation Banner, and if it was in the purview of Westminster, whether you tacked on the RUC or not, you could do all of that – someone could challenge it if they wanted to press that point, but there is no impediment to doing it.

Q100 Chairman: There would be nothing to prevent, as suggested earlier, setting up some form of tribunal to which anybody, after the statute had come into effect, could choose to come forward and tell their stories.

Professor McEvoy: The ICIR – the Independent Commission on Information Retrieval, which is one of the four constituent elements of the Stormont House Agreement – is not a million miles away from precisely that. That is why earlier I suggested that if you are going down this route, you look closely at that process and see whether there could be the potential for a nudge towards that. You already have an architecture that has been agreed by the political parties and the two Governments.

Q101 Chairman: And if that were to be incorporated with and referenced in the legislation for the Statute of Limitation, do you think that would meet the article 2 point?

Professor McEvoy: It depends on the nature of the investigation and what the truth recovery functions are in terms of the Historical Investigations Unit.

On the technical point I made earlier about the Sentence Review Commission, Dr Lewis, you made an important point about the distinction between the terrorists and the non-terrorists in terms of the Good Friday Agreement. A lot of people make that argument. I am not so sure I accept that that is what the Good Friday Agreement actually says. There were two soldiers in prison when the Northern Ireland (Sentences) Act 1998 was passed. My understanding, having talked to the head of the Sentence Review Commission – a lawyer called Brian Currin – is that originally there was an assumption that those two soldiers would be released via that process. Indeed, he was approached to that effect originally by the MoD. The two soldiers were subsequently released, so far as I understand it, using the royal prerogative of mercy; they didn’t go through the Sentence Review Commission.

The point is that the two-year cut-off point has not been tested. I have looked closely at the legislation, and I think soldiers are eligible to apply to the Sentence Review Commission. The distinction between terrorists and state actors has not been tested, because soldiers weren’t run through that system when they were released.

Chairman: And then, of course, you have to ask yourself, if we had a level playing field – you are saying we may indeed have one and just not realised it yet.

Professor McEvoy: It may be already.

Q102 Chairman: If we have a level playing field, in which we are saying that anybody who killed anybody during the Troubles is not going to serve more than two years, how much of a jump is it from there to saying we should have a Statute of Limitations, coupled with some form of tribunal or commission for people to get to the truth? We would then not have to put people, especially the innocent, through the trauma of an investigative process 40 years after the event, which at most will lead to a maximum of a two-year sentence. We would then not do it at all, but what we will do is put everybody’s mind at rest and draw a line, but there will be this mechanism that you just described that will perhaps be more likely to arrive at the truth, will it not, when people know that they are not going to jail?

Professor McEvoy: From a personal point of view, that probably would have been my position. If in the design of, and the political conversations around, the Stormont House Agreement we had actually been more honest – I was going to say frank – about the limitations of prosecutions, the difficulties associated with historical prosecutions and, traumatic though it may be for people who are put through that process, the small numbers who will end up going to jail, that is probably where I would have ended up on this. I probably would have ended up saying – the Stormont House Agreement is what has been agreed by the political parties, and I recognise that different parties required there to be some kind of a punishment, albeit only two years. That was the political reality, and that is the compromise where we ended up.

Q103 Gavin Robinson: The Stormont House Agreement is the agreement between the parties in Northern Ireland. What we are proposing here today, and that you are considering for us, is a matter for the British Government.

Professor McEvoy: But the Stormont House Agreement is an agreement between the two parties and the two Governments; it is not just about parties.

Q104 Gavin Robinson: Yes, and so all are still tied in with that process, but there is nothing to restrict this Government from acting outside of that in a different sphere for those involved in operational matters.

Professor McEvoy: It would be up to the Committee to make the political judgment as to the consequences of operating outside the Stormont House Agreement. I suspect it would mean the Stormont House Agreement would be dead in the water.

Q105 Chairman: Can we just check this point that was alluded to a couple of times earlier? If it was the case that the Westminster Parliament decided to pass this sort of legislation covering terrorists, soldiers and police – the whole lot – am I right in what I said earlier that the Northern Ireland Assembly might be able to have some sort of veto over it, as it relates to any particular group from Northern Ireland, or would they have no veto over it at all?

Professor McEvoy: Again, it is in the paper before you. There is quite a substantive section on the legislative consent motion, which is what we are talking about here, in effect.

Q106 Chairman: Yes, what’s the status of that?

Professor McEvoy: It’s clear from the recent Brexit judgment that it is a constitutional convention but it is not enforceable in the courts. Therefore, if the Westminster Parliament decided to introduce an Act, Parliament is sovereign, and there is a constitutional convention, but it is not enforceable in the court’s legislative consent motion.

Gavin Robinson: But, more than that, national security is a reserved matter and Defence is a reserved matter. Even whether it might be appropriate or not, those issues rest with Westminster. 

Professor McEvoy: Absolutely. 

Q107 Chairman: Just for clarity, what you are saying is that the Westminster Parliament could pass a Statute of Limitations, either just to protect the soldiers and/or the police, or the soldiers, the police and the terrorists? 

Professor McEvoy: I am not convinced that you can make the distinction. I think I agree with Professor Sands. 

Q108 Chairman: So you think it would have to be for everybody? 

Professor McEvoy: Yes, because, apart from anything else, if you introduce a Statute of Limitations that is only directed at state actors, it looks like state impunity, in effect; there are international legal obligations around state impunity. You have a stronger case to make, legally, if you are saying that this is part of a genuine effort at conflict transformation and dealing with the legacy of the past, and we are applying it evenly across the piece to all of the actors. If you just apply it to the state, it looks like old-fashioned impunity. 

Professor Ekins: I think that is highly plausible. You could argue that it is symmetrical to the Good Friday provision for paramilitary groups and so forth – not literally symmetrical –  

Q109 Chairman: Sorry, what do you mean by symmetrical? 

Professor Ekins: Well, a Statute of Limitations – if this was the only legal measure that had been taken in relation to killings and serious offences arising out of the Troubles, then you would have a very strong argument that this was just state impunity. But if you already have a separate legal architecture for dealing with paramilitaries and just take for granted no separate provision for soldiers and police, then here is a separate provision for soldiers and police. Viewed in isolation, it might look like impunity, but you have got to view in the context of the larger settlement, if you like. 

Professor McEvoy: As I said earlier, my own view is that actually the architecture of the Good Friday Agreement applies to both state and non-state.

Professor Ekins: I can see the argument, but one can argue –  

Q110 Chairman: Theoretically, we do have that option. The reason I raise this is because one would want to minimise the amount of friction that it would cause in the existing arrangements if possible and therefore we want to have as many options put forward at the end of this inquiry as possible. What you are saying is that we could, at least in theory, put forward a Statute of Limitations targeted just on the soldiers, or one on the soldiers and the police, or one on everybody. We could do all of those and there is an arguable case to be made for any of them. I appreciate your stance is that you think the case for some is stronger than others. Is that right?

Professor Ekins: I agree with that. 

Professor Rowe: If I could just take a purely legal point – because I am not up to date with the Northern Ireland Stormont House Agreement and the Good Friday Agreement and the politics of that – in my view a Statute of Limitations would be perfectly permissible, but it would have to be applied to everyone. I don’t see that there is really a possibility of applying it to one group or another, from a purely legal point of view, let alone a political point of view. For those who might be interested, there is a concurring judgment in the European Court of Human Rights in which two of the judges said some very supportive things about a Statute of Limitations, referring to the fact that the individual has a right to be left alone after a particular time. 

Q111 Chairman: Could we have that reference?

Professor Rowe: Certainly.

Chairman: Thank you. We are coming to the close. Madeleine has a quick point and then Gavin, and then I think we will be done.

Q112 Mrs Moon: My point is small in terms of this inquiry, but big in terms of our overall view around our personnel being called back over retrospective reinterpretations of the law. If in relation to the Historical Investigations Unit in Northern Ireland there was a suggestion that there should be a Statute of Limitations, whether for one group or all, would it be possible to draft that in a way that it applied for wherever British personnel have fought or have been engaged? Or would it apply only in this one scenario? Do you see where I am going? What I wouldn’t want is that we do this only in terms of Northern Ireland because it looks like:

“Ah! There’s a cover-up here.”

Actually, this is a universal principle that this particular Committee, after its investigations into IHAT, is deeply concerned about. This is not just an issue in relation to Northern Ireland; it is a wider issue.

Chairman: Before you reply – Gavin, would you like to put your point as well?

Gavin Robinson: Yes. Very simply I am thinking about what Professor Rowe had said about having to include everyone, because we are thinking of this in Northern Ireland’s context when indeed it is much wider. A Statute of Limitations is not going to be a one-off event. If we pass a limit in statute, it would be there until Parliament decides to remove it, expand it or alter it. On that basis, if you take 20 years as a target, we are only four years away from the 20th anniversary of the commencement of operations in Afghanistan. So as a continuing point of principle, we do not need to cloud it with the Northern Ireland experience. Keep it within the military sphere or the public service sphere – I mentioned the police – given the Northern Ireland context. That principle means you do not need to worry about the issues around Belfast agreements or the throwing up of red herrings, because Government gave amnesty to the other fellas a long time ago.

Mrs Moon: It is a heavy question for you to consider, and if you would rather go away and consider it –  

Chairman: No. I am sorry, but I want a response now. If you want to write to us afterwards with your further thoughts that is fine, but I am not going to leave that one hanging in the air. We would like your response now.

Professor Rowe: I think that it is an excellent idea to have it wide-ranging so that it applies wherever. Wherever British forces serve, they take English law with them –  

Mrs Moon: Absolutely.

Professor Rowe: So, it would latch on to the English law element of their duties.

Gavin Robinson: Albeit, it may then be used by the ICC in considerations –  

Professor Ekins: Possibly.

Professor McEvoy: I think that’s what –  

Professor Ekins: You could limit it by type of case.

Q113 Chairman: Sorry, I will take you in order. On that point about the ICC, do you have anything to add, Professor Rowe? We don’t really want to extract ourselves from one frying pan and jump into a fire.

Professor Rowe: Under the Rome Statute, we cannot have a Statute of Limitations for crimes committed under the Rome Statute.

Q114 Chairman: Sorry, that signifies what exactly?

Professor McEvoy: War crimes, crimes against humanity, genocide –  

Professor Rowe: Yes. War crimes, crimes against humanity and genocide. You cannot have a Statute of Limitations that covers those.

Mrs Moon: I do not think anyone would be looking for that at all.

Q115 Chairman: So, presumably the Statute of Limitations, if it were a more general one, would have the appropriate exceptions written into it.

Professor Rowe: It would have to, to comply with our obligations under article 29.

Chairman: Very good.

Professor McEvoy: I agree.

Professor Ekins: A short point to say that you could try to limit by type of case. I am not sure how practical this is, but if the type of case in question were excessive use of force in what would otherwise have been a lawful action, that might be importantly different to a radical different departure from anything one would expect of a soldier or policeman. If it were calibrated more along the lines of the type of action rather than if you were a serving soldier or police officer, that might help on the ICC point too.

Professor McEvoy: Sorry, I should clarify, I agree to that legal analysis rather than to the idea of – [Interruption.] 

Gavin Robinson: Let me speak over you – [Interruption.]  

Professor McEvoy: For the record, I agree to Professor Rowe’s legal analysis to the last point on the ICC, rather than to the idea that this is a good idea, particularly because of its consequences for the Northern Ireland context. That is what I agree with.

Chairman: Right. So, we have the option of a Statute of Limitations that might be targeted on certain groups, but a preference for a Statute of Limitations that would cover everybody in Northern Ireland, and a possibility of a Statute of Limitations that might go wider than Northern Ireland. Those are at least three options to put into the mix, quite apart from trying to manage the present system, which I think we all regard with a certain amount of disdain if not horror. On that happy moment of consensus, may I thank all three of you and Professor Sands in his absence? It has been a long session, which covered an enormous amount of ground. We are very grateful to you. The hearing is concluded.

[IMPORTANT NOTE: Subsequently, it was confirmed by Ministers that the maximum two-year jail period, set out in the Northern Ireland (Sentences) Act 1998, does apply to Service personnel — see exchanges above at Questions 77, 84 and 101.]

[For the full transcript of this Defence Committee session, click here.]