Fighting “Lawfare”

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I was pleased last week to secure a debate in Parliament on the development of something that has become known as “lawfare”. Over ten years after the end of operations in Iraq, British lawyers are trawling places like Basra finding people they can convince are “victims” and seeking to get them large sums in compensation. They do this by no-win-no-fee schemes or by using our taxes in legal aid.

No one admires the Armed Forces more than I but I concede that, like all of us, they sometimes fail. I believe we need to have strong sanctions against those who do. But it really has got absurd. There is a Government body called the Iraq Historic Allegations Team (IHAT) that was set up in 2010 to do a two year job of dealing with outstanding cases. Nearly six years later it has had its remit extended until 2019. This is to cope with a tsunami of claims coming from two legal firms, Leigh Day and Public Interest Lawyers. If the over 1500 cases under investigation were exposing an institutionalised war crimes culture embedded in our Armed Forces, I would go along with it. But it has found the opposite. To make the situation worse, the behaviour of some of the lawyers concerned has been despicable.

Meanwhile veterans are being visited by detectives, interviewed under caution and told that they may face criminal charges. All but a tiny percentage of investigations are dropped. In one case a judge criticised the legal firms and their clients for systematic lying and the withholding of evidence that could have cleared veterans sooner.

I am pleased that the Prime Minister is on the case. He wants a ban on any non-British resident claiming legal aid and an end to no-win-no-fee schemes. He also wants the Government to sue firms who are found to have acted improperly. I want to go further. I want a time limit on claims and for future conflicts to remove our Armed Forces from the European Convention on Human Rights. There are many measures we can bring against troops that break the rules of law but human rights legislation does not work for anyone except ambulance chasing lawyers.

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Westminster Hall debate on the Iraq Historic Allegations Team – 27th January 2016

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Watch my speech here on Parliamentlive.tv
 
 
The text of my speech is below: 
Richard Benyon (Newbury) (Con): I beg to move,
That this House has considered the Iraq Historic Allegations Team.
Albert Owen (in the Chair): Because of time factors, if the Member who secured the debate takes 10 minutes, all the seven Back Benchers, including Mr Stewart, who have indicated that they want to speak will have four minutes before I bring in the Scottish National party and Labour party spokespersons for five minutes each, and the Minister will have 10 minutes to respond.
 
Richard Benyon: Thank you, Mr Owen, for overseeing our proceedings today. I am grateful to the Minister for being in her place and to so many colleagues for showing so much interest in this important matter.
I have a view of our armed forces that is similar to my view of other public services. Just as with the NHS and the police, I revere the people who work for those services for being the best at what they do and for showing exceptional courage and professionalism. I also accept that the armed forces, like other public servants, sometimes fail. In wanting them to remain the best armed forces in the world, I want there to be a proper sanctioned system, clearly understood by all ranks, to act as a deterrent against those who might break the rules of law. Here I admit a prejudice. As somebody who has served on operations and saw men under my command have their self-control tested to the extreme, I constantly wonder how young men, often with little education, can show such intelligent restraint at times of great provocation. I am only talking about Northern Ireland.
This year sees the 25th anniversary of the first Gulf war. Hundreds of thousands of young men and women have seen more combat in the quarter century since than in any period since the Korean war. To mark it, Help for Heroes, in conjunction with King’s College London, has produced an in-depth report that shows that roughly between 60,000 and 70,000 regular veterans and around 20,000 reservists will need our support in the coming years as they face the effects of combat. Those are the people I will talk about today and they should be our absolute priority.
I secured this debate because something has happened to some of our veterans in recent years that I think needs the urgent attention of Government. Some call it “lawfare”. It is having a profound effect on the morale of our armed forces and on how we will be able to fight wars in the future.
 
Mark Spencer (Sherwood) (Con): Does my hon. Friend agree that, in the security of this Chamber, it is difficult to second-guess the decision-making processes in the theatre of war, where the environment is entirely different?
 
Richard Benyon: My hon. Friend is right, and I would add that when decisions are taken through judicial process, with the benefit of hindsight, sometimes more than a decade later, it is very hard to try and put oneself in the position of those who are taking the difficult action.
 
Nusrat Ghani (Wealden) (Con): Does my hon. Friend agree with one of my constituents who explained in an email that the present wars are not the same as wars in the past, where it was obvious who the enemy was and certain standards were adhered to on both sides? We are working in very difficult times at the moment.
 
Richard Benyon: Most of the asymmetric conflicts that we have fought in recent years are extremely difficult. We are fighting an enemy who does not sign up to the Geneva convention and the basic rules of war. I will make suggestions for the Minister that I think might address those concerns. My hon. Friend is, as always, absolutely right.
My hon. Friend the Member for Tonbridge and Malling (Tom Tugendhat) co-wrote a landmark report last year called, “Clearing the Fog of Law”. I recommend it to hon. Members. In it he makes some recommendations that are intellectually researched and will go a long way to address the problem that we discuss today. I am also grateful for any contribution to the debate from my hon. Friend the Member for Banbury (Victoria Prentis) whose understanding of these issues within the machinery of Government is second to none.
My right hon. Friend the Member for Mid Sussex (Sir Nicholas Soames), who has asked me to say he is sorry he cannot be here as he is in hospital, wrote a powerful article last week in which he described an action in which a sniper shot and killed an insurgent who was about to fire an RPG-7 round towards troops. The shot was made from 1,200 metres—an act of skill that is hard to imagine. However, in absolutist terms, it could be that this fatality was illegal as the sniper did not issue a verbal warning. To give such a warning in a language that an assailant can understand over that distance is clearly a ridiculous concept, even before you try to second-guess the thoughts racing through the sniper’s mind as he balanced the rules of engagement with the safety of his mates. I think he did the right thing. Now we are led to believe that he is being investigated because a firm of lawyers—sitting, no doubt, in the comfort of offices in London or Birmingham—have realised that there is money to be made here. The lawyers have tracked down the deceased’s family, who have no doubt been told of the riches available on a no win, no fee basis or possibly from legal aid. This has to stop.
The Iraq Historic Allegations Team was being set up in the last days of the previous Labour Government. It was put into operation by the coalition Government for a perfectly respectable reason, and no doubt also to offset some of the threats from international judicial processes, to tackle alleged crimes in that conflict.
 
Sir Gerald Howarth (Aldershot) (Con): My hon. Friend is making a powerful case. I was an opponent of the International Criminal Court Bill that was proposed by the Labour Government and would have subjected our soldiers to the International Criminal Court. I said at the time that
“we must foresee the possibility of the court saying that this country has been unwilling to take action although we believe that it would be inappropriate for our national courts to do so. In such circumstances we must provide maximum protection to our troops.”—[Official Report, Standing Committee D, 1 May 2001; c. 247-48.]
Is it not the case that the Government introduced this because it feared that otherwise our troops would have been taken to the International Criminal Court?
 
Richard Benyon: I find it depressing that we are talking about this so long after my right hon. Friend made those remarks. It will be interesting to hear from the Minister what advice she has received about the need for the Iraq Historic Allegations Team. Perhaps the debate will be able to draw out some of the reasoning for it.
As we know, IHAT was set up in 2010 by the then Minister, Sir Nick Harvey, who in a written statement said that he expected it to complete its work within two years. In July 2014, the Secretary of State recognised that IHAT’s work was not going to be completed by the end of 2016. He approved additional funding of £24 million to cover the period from the end of 2016 to the end of 2019, which increased the level of funding of IHAT to £57.2 million. I want us to think of 2019 in relation to when some of the instances it is investigating actually took place.
IHAT employs 145 people and is still recruiting. The job specs actually say that contracts are initially short term, but are likely to be extended for significantly longer. The IHAT website gives 2019 as the likely date when it will complete its work. If it was exposing systematic and institutionalised war crimes, I would at least understand why such persistence was a good idea, and feel that the cost to the British taxpayer was justified. Estimates in the press say it costs £5 million a year, but other estimates vary. A look at IHAT’s website shows that 18 investigations have been completed, one of which has resulted in measures being taken against somebody, and a £3,000 fine being awarded. Of the others, 15 cases have been dropped and two cases have been passed to other authorities, but no action has been forthcoming.
By June last year, following a huge increase in IHAT’s caseload, the diagnosis was even worse. It is not necessary to be a mathematician to appreciate that, at this rate, the task of investigating allegations arising from the activities of British armed forces in Iraq will never be fully completed. The Ministry of Defence guide describes what has happened to the 59 allegations of unlawful killing that IHAT has reviewed up to this month: 34 cases have been closed, or are in the process of being closed, with no further disciplinary action; seven are currently subject to further limited, focused lines of inquiry; and 17 are under investigation. Only one of those cases was referred to the Director of Prosecutions, who directed that there should be no prosecution. So, on the face of it, that is not a great record.
At this stage, I want to make it clear that I do not blame the Iraq Historic Allegations Team. It no doubt has worthy detectives sifting the evidence, but after 10 years it is finding two things: evidential trails have run cold; and it is being inundated with claims, many spurious and many the result of the malign actions of lawyers, who see this is a Klondike-style fee-fest or, perhaps, as a way to get at the system that conducted what they believe to be an unjust war. If anyone doubts my last remark, I suggest looking at the interview on YouTube given by Mr Phil Shiner of Public Interest Lawyers to that great beacon of impartiality, Russia Today.
IHAT’s caseload now involves just over 1,500 alleged victims, 1,235 of whom are victims of ill treatment and 280 of unlawful killing. Given that backlog, the burden will hang over the heads of many of our veterans for many more months and probably years. That is utterly intolerable.
All that falls into the concept of what “Clearing the Fog of Law” calls “legal imperialism”. The worst case of such a culture are the allegations that culminated in the al-Sweady inquiry. The allegations surround actions taken during what became known as the battle for Danny Boy, a brutal attack on a checkpoint of that name resulting in a fierce firefight. British troops showed exceptional courage and resolve, and a number were decorated for bravery. The inquiry that followed cost £31 million; the fees were about £5 million. Some mistreatment was discovered, but the allegations of torture, mutilation and murder were baseless and the product, according to the judge, of “deliberate and calculated lies”.
The Government and many others have accused the two firms promoting the cases, Public Interest Lawyers and Leigh Day, of attempting “to traduce” the reputations of the Army units concerned. We have heard that the alleged actions of one of the law firms, Leigh Day, have resulted in referral to the Solicitors Regulation Authority. I hear that Public Interest Lawyers might also be referred to that body.
We could all take up lots of time venting our collective spleen at the behaviour of firms that trawl places such as Basra trying to convince people of the great riches in proving that they were victims of bad behaviour. We could take up much more time asking the shadow Defence Secretary, the hon. Member for Islington South and Finsbury (Emily Thornberry), why she and the Labour party thought it right to accept donations or donations in kind from those firms.
 
Julian Knight (Solihull) (Con): I congratulate my hon. Friend on his speech. Does it not speak legions that virtually no Labour Member is attending the debate today? What does that show about Labour’s position on the military?
 
Richard Benyon: I share my hon. Friend’s feelings. Rather than spend the time talking about our views of those lawyers, however, which would be self-indulgent, I want to get to the bottom of this concept of legal imperialism.
I am glad that since I requested the debate the Prime Minister has announced that he has asked the National Security Council to produce a comprehensive plan to stamp out the industry. He is looking at banning no win, no fee schemes; he is speeding up the planned legal aid residency test; and he is strengthening penalties against firms that abuse the system, possibly even including suing those who have been found deliberately to withhold facts that could prove the innocence of the servicemen or women concerned.
That is all good stuff, but I want to press the Minister for more information on the timescale for the reforms. I suggest that they can only be seen as work in progress. May I respectfully suggest that the Minister add to the Prime Minister’s wish list the suggestions made in the report by my hon. Friend the Member for Tonbridge and Malling?
 
In order to draw a line under the situation, for recent and future conflicts the Prime Minister should consider these powerful recommendations. The Government should derogate from the European convention on human rights in respect of future overseas armed conflicts, using the mechanism of article 15 of the convention. The Government should revive the armed forces’ Crown immunity from actions in tort during all future “warlike operations” overseas by ministerial Order under the Crown Proceedings (Armed Forces) Act 1987. The Government should take the lead—this is important—in supporting efforts by the International Committee of the Red Cross to strengthen the Geneva conventions on the conditions of modern warfare, which addresses the point made in an early intervention by my hon. Friend the Member for Wealden (Nusrat Ghani). The Government should make an authoritative pronouncement of state policy, declaring the primacy of the Geneva conventions in governing the conduct of British forces on the battlefield.
 
Danny Kinahan (South Antrim) (UUP): I am grateful that we are having this debate. Does the hon. Gentleman feel that alongside the conflicts of the past we need to concentrate on the past in Northern Ireland as well? We should also look at a proactive media presence so that we are in front when defending our servicemen, rather than waiting for every case to get to the papers.
 
Richard Benyon: The hon. Gentleman is right. I support the plea by my hon. Friend the Member for Aldershot (Sir Gerald Howarth) that incidents such as that of the arrest of Lance Corporal J of the Paras under caution should cease. Society wants a line drawn under such things. We seem to have moved too far towards favouring the actions of our enemies and we do not seem mindful enough of those to whom we owe a great debt.
The recommendations I have just outlined are clearly set out in the report of my hon. Friend the Member for Tonbridge and Malling. It makes it clear that we are not only talking about alleged victims of war crimes, excessive violence in combat or the mistreatment of prisoners. The definition of “lawfare” extends to the ability of the courts to judge the actions of commanders—decisions often taken in the heat of battle and then judged years later by people for whom such circumstances are alien and with the mantle of hindsight.
I go back to my own experience. I got to know well a 19-year-old soldier who, in a tense situation, shot and killed someone contrary to the so-called “yellow card” rules for opening fire. He was convicted for murder. The case has haunted me for 34 years. My worry is that the legal imperialism we have seen in recent years and the existence of organisations such as IHAT will put a dangerous caution in the minds of the sniper of the future. Rather than taking a life to save many, caution prompted by a fear of legal implications might, to quote my right hon. Friend the Member for Mid Sussex, “put a splint around his trigger finger”.
The analogy extends into every area of war, involving everyone from the most junior soldier just out of training to the most gnarled veteran of a quarter century of expeditionary warfare. The Apache pilot, the mortar platoon commander and the frontline rifleman all need to be governed by the rule of law—but which law? That is the matter that the Minister and the Government must tackle with haste. However despicable we might think the actions of certain lawyers are, they are only responding to circumstances created by Governments past and present. My argument is that the rules we have created put our servicemen and women in greater danger in future. That cannot be right.
 

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Talking about migration

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For many years to even talk about migration was to excite accusations of “playing the race card”. I know because it happened to me. I have what I suppose could be viewed as moderate views on the issue. But even that was too much for some. The problem for those that want to push the matter under the carpet is that real people in the real world are very concerned about the levels of migration into Europe. If moderate politicians do not face up to it and openly discuss the tide of those wishing to come to countries like Britain, we will leave the field open to extremes on both sides: those on the left who believe all migration controls are wrong and those on the right who stoke the fires of racism.

The influx into Europe’s southern flank is the product of war, tyranny and the desire for a better life. It is clear that this is an almost generational issue. While in time, the Syrian tragedy may abate, other areas of tension will erupt in conflict. Poverty, lack of opportunity or the effects of climate change will all spur people to take impossible risks to come to enjoy safety and the prospect of work in countries like Britain. Whatever your political views and whatever your intentions in the forthcoming EU referendum, you should wish David Cameron well as he comes to the end of his gruelling negotiations with EU partners. If he is successful, Britain can close off one of the pull-factors bringing migrants to our shores. He can delay the time before which a migrant can claim benefits and confirm our position as being outside the Schengen Agreement of open borders within the EU. Our population is predicted to grow by nearly 10 million in the next 25 years. If we can’t control our borders with firm but fair rules that figure could be an extra 16 million. The right sort of migration helps our economy but the sheer scale of the demand to reach our shores and the threat of a lack of collective will to contain the numbers creates a problem for the next generation who seek to govern this small and already overcrowded island.

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Justice at last for Lord Bramall

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About a hundred years ago I was commissioned into a Regiment called the Royal Green Jackets. At my Sandhurst commissioning parade was the head of the Army, a General with a chest full of medals, some of which showed wartime service and included a Military Cross. To Green Jackets like me, Field Marshall Sir Edwin Bramall was a sort of God. On being accepted into the Regiment we were given a booklet he had written which I still have. It is called Leadership the Green Jacket Way. It contains words that have stayed with me through different careers. It was all about care for those for whom you were responsible, conducting yourself with integrity and using your own initiative.
 
Like so many who admired Bramall I was appalled to see that he was under investigation for child abuse. This eminent public servant in his nineties had had his house searched and name dragged through the mud with accusations of just about the worst kind imaginable.
 
Now his name has been cleared in a rather grudging manner delivered in a letter from the Metropolitan Police. I won’t fall into the trap of believing only the best of those I admire but this case really did not ring true. I asked so many who worked for and with him if I was being blinkered at my horror at his treatment. The answer was universally “no”. That he has been cleared before his death is some consolation, but it has taken a long time. It seems today that the best way to attack “the establishment” is to insinuate that this kind of abuse took place and then a judicial system that is so traumatised by the failures to stop people like Jimmy Savile will err in the other direction. Great names like Leon Brittan and Dwin Bramall suffer the humiliation of false claims and in the former’s case, go to their deaths wondering how many are thinking “where there is smoke there is fire”. Field Marshall The Lord Bramall KG GCB OBE MC is a tough old soldier who, despite the infirmities of age, will live on with his reputation intact but that does not stop those of us who admire him from feeling a bitter injustice was done to a great man.

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