Earlier today Minister for the Armed Forces Penny Mordaunt spoke at a Westminster Hall debate on the Iraq Historic Allegations Team (IHAT). Here is the check-against-delivery version of her speech.
Thank you to the Honourable gentleman for securing this debate. He is a doughty champion of our Armed Forces, and a former member of their number having served with the Royal green jackets and later as a reservist. I would in particular like to thank the Honourable members for Tonbridge and Malling, and Banbury who have not only spoken today but who, along with the Rt Honourable member for Beconsfield, have been a great help to me in the work I have undertaken on these issues since May last year. I would also thank all Honourable members who have spoken in support of our Armed Forces.
We send them dressed in body armour, into harms way, to defend our freedom, and our national interest. It is not just their courage and capability that makes them the best, it is their values and the high standards we hold them to: values of self-discipline and self-sacrifice.
Much of what they do in both war and peace is to uphold the rule of law, including international humanitarian law, such as the well-known and well-understood Geneva Conventions.
As a nation we have chosen to invest in preserving and promoting these vital rules in armed conflict, ensuring they are reflected in all we do, and using our considerable reach to instil them in Armed Forces across the globe. And it is right we meet the obligations on us to investigate credible allegations of serious criminality or war crimes.
How ironic it is then that those brave men and women who do so much to protect and promote human rights and the laws that enshrine them, stand accused of wishing to exempt themselves from such obligations.
In my reply to this debate I will set out some of the shocking practices of those accusers - largely two law firms - that concern us, and what we are doing to meet our manifesto commitment to ensure our “Armed Forces overseas are not subject to persistent human rights claims that undermine their ability to do their job.”
I will contrast this with the work of the IHAT and give an insight into their remit and methods and some of the cases they have been dealing with. This I believe, if I have done them justice, will be reassuring for both Honourable members of this house and our Armed Forces themselves.
But first I wish to explain why protecting our Armed Forces from litigation motivated by malice and money is not just compatible with upholding human rights and the pursuit of justice - but that Human rights and justice depend upon it.
This is not about holding our Armed Forces “above the law”- as Leigh Day have suggested, but rather that we wish to uphold the primacy of international humanitarian law that helps keep our Armed Forces safe and gives them the freedom to act in accordance with those laws and protect human rights. The ability to take prisoners, for example, is a well understood good. Not to be able to do so would have very grave consequences indeed, for both sides of a conflict.
Any action which undermines or deviates from such rules is detrimental to our operational ability, to our own Armed Forces' safety, and we should make no apology for investigating and holding to account our own Armed Forces for such actions. It is in our national interest to do so, as well as in the interest of the people who serve in our Armed Forces.
It is the steady creep of European human rights legislation, not written for conflict, that is eroding international humanitarian law. It is the behaviour of parasitic law firms churning out spurious claims against our Armed Forces on an industrial scale which is the enemy of justice, not our Armed Forces or the Ministry of Defence.
When the courts entertain claims against our forces such as the case of an insurgent bomb maker suing us for not shooting him in a firefight, but instead taking him prisoner and holding him until we could guarantee he would not face mistreatment in the local justice system.
Then it is not just our Armed Forces who suffer - the strain on them and the corrupting effect on their behaviour in the field - the cause of Human rights suffers too.
Today, when faced with the likes of Leigh Day and PIL we need to wrap our service personnel in more than just body armour when we send them out to defend freedom.
Shortly, the National Security Council will meet to decide on a number of options to address all the concerns Honourable members have raised this afternoon. Over the last 8 months extensive work has been going on in the MOD and MOJ on these issues. Honourable members have mentioned some of the options that may be brought forward. There are others too.
Specifically, with regard to the issue of spurious litigation being brought against our service personnel and the conduct of legal firms, the Prime Minister has announced the Honourable member for Esher and Walton, the Minister for Human Rights, and I will be co-chairing a working group to tackle every aspect of that: including conditional fee arrangements, legal aid rules, and disciplinary sanctions against lawyers who are abusing the system or attempting to pervert the course of justice.
I can understand against this backdrop how the work of IHAT has been tarred with the same brush. I hope that today I can set the record straight on why it would be a disservice to all concerned to do so, whilst outlining where the MOD does have concerns.
The IHAT was set up in 2010 to ensure that credible allegations are properly investigated. It ensures that the International Criminal Court is not required to investigate or prosecute so that British service personnel do not end up in the Hague. It investigates allegations brought to it. It is independent, but funded by the MOD and we have a responsibility to ensure it is both fit for purpose and value for money.
So far so good.
However while between 2010 and the beginning of 2014 Iraqi citizens had lodged only 192 claims with the IHAT through PIL, between July 2014 and October last year this firm lodged a further 1,200 cases.
They claim that the Defence Secretary took a decision not to investigate allegations of wrong doing. This is not true. The overwhelming majority of the cases were first brought to our attention by being lodged with the High Court.
That so many people decided to independently seek out this firm and initiate litigation in our courts, over a decade after the alleged incidents took place, defies credibility, and is subject to an investigation by the Solicitors Regulation Authority.
IHAT is methodically working through all the cases lodged with it - it triages them. Many hundreds of cases have been discounted following an initial assessment. Others are being dismissed after a fuller investigation, gathering information and evidence which will put to bed those allegations once and for all. A minority of cases will result in a full investigation, and a smaller number still will be referred to the Service prosecutor.
From the 1,558 cases it has been asked to look at I anticipate only a handful may result in prosecution. As was announced at the weekend of the 58 unlawful killing cases concluded so far none have resulted in a prosecution.
I want to give Honourable members an insight into some of those cases. This will demonstrate the importance of what IHAT does and some of the practices by a minority of law firms that are a concern to both IHAT and the MOD.
Case number 377: It was alleged that a passenger in a car was shot by a “hysterical” British soldier in a tank. The IHAT investigation ascertained that PIL has submitted this allegation in October 2014, despite the Danish Armed forces accepting liability for this incident and paying compensation in August of 2003.
Case number 82: Was the investigation into the death of a man who died in a UK controlled detention facility. The evidence gathered by IHAT showed that he had previously been diagnosed with a heart condition, and this had been picked up from a medical he had had at the detention facility. He was given appropriate medication. He later suffered a suspected heart attack and died while UK forces were taking him to hospital.
Case number 123: It was alleged that a 13-year-old girl had been killed when she picked up part of a UK cluster bomb that had failed to detonate. The IHAT investigation established that a 13-year-old boy had been killed, but was unable to ascertain whether Iraqi or UK munitions were responsible. PIL challenged the MOD's decision not to refer the case to Sir George Newman and the Iraq Fatalities Investigation. Shortly before the hearing PIL disclosed a witness statement the boy's father made before the IHAT investigation in which he said that he had been killed whilst in the vicinity of an Iraqi mobile missile launcher preparing to fire missiles into Kuwait, which was destroyed by a coalition forces helicopter.
There are many other cases I could mention which concluded after thorough investigation that UK service personnel had acted in self-defence, in the defence of others, and lawfully.
IHAT enables us to meet our obligations to investigate serious wrong doing and its work is exonerating those wrongly accused, and rejecting bogus allegations. Its investigators - a mix of service personnel, police officers and legal experts - are doing a public service.
I want to pay tribute to them. They feel their responsibilities keenly. These investigators did not set up IHAT; this was done by a previous Government. And it was done so for sound legal and policy reasons. There should be a domestic system of accountability, without one there would be an international one.
I hope I have set the record straight on that. However some questions to remain for us - the politicians:
1) Does the existence of IHAT invite such claims?
2) Were we not funding IHAT would fewer cases be brought?
3) Why so many cases being brought and why are they so poorly researched, lengthening the investigation process?
4) How can it best sift out credible allegations from the mass of others?
5) What is being done to support our Armed Forces though this?
IHAT work is independent of the MOD. We should not, and will not, interfere in its investigations and their work must have the highest integrity. But we do have a duty to ensure public funds are being used effectively.
There are questions about how legal firms are working the system for maximum profit, and practices they insist upon which not only frustrate investigations but also increase public funds going to them, for example requiring their clients not to speak to IHAT directly but only via an agent of theirs.
I also want to ensure IHAT processes and practices are being as efficient and swift as possible. It is right we look at further ways we can get that to happen, without compromising the quality of their output. I know this would be welcomed by the IHAT team.
I can reassure Honourable members that we do provide support to our Armed Forces throughout such investigations and such support is also imbedded in the practices of IHAT.
Support the MOD routinely provides to service personnel includes funding legal costs, as well as pastoral support. We fund medical assessments and applications excusing veterans and serving personnel from giving evidence who are not medically fit to do so. Indeed some in the judiciary have criticised the MOD for providing such support.
These obligations remain whatever the theatre the actions took place in: Iraq, Afghanistan, Northern Ireland or elsewhere. But we recognise the cost of all of this to our service men and women and to the public purse.
The Al-Sweady case, which has exonerated our Armed Forces, and resulted in Leigh Day being referred to the Solicitors disciplinary tribunal, cost the MOD and the British taxpayer £31 Million. That is £31 million I would argue they would rather see spent on equipment and support for our Armed Forces.
The status quo is financially unsustainable and morally unjustifiable.
To put this right falls to us in this place, but we must all be resolved to do so. This issue and the solutions we will bring forward are complex. But the objective is simple: we must protect human rights and we must protect those who defend them - our Armed Forces.