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Army: Advice of Attorney-General

My Lords, I am grateful to the noble Lord, Lord Campbell of Alloway, for introducing this important debate. He has had a long and distinguished legal career, he served with the British Expeditionary Force in the Second World War and he was incarcerated in Colditz. Your Lordships will always be interested to hear whatever he has to say on any subject, and today is no exception. As the noble Lord demonstrated, he has given us much food for thought, and I am sure that my noble and learned friend the Attorney-General will respond to his proposals. Unlike the noble Lord, Lord Campbell of Alloway, I have not studied the law. I have, however, studied history. When I think of the 300 Spartans under King Leonidas as they stood against over 40,000 Persians at Thermopylae in ancient Greece, it is probably a safe bet to assume that the forebodings of court martial were not uppermost in their thoughts. Even the well-disciplined Roman army had scant regard for the human rights of their enemies, something that Queen Boudicea, or Boudica if you prefer, paid back in spades when she sacked two Roman cities here in the 1st century. War began to change its nature in the Middle Ages when the fathers of the Christian Church, from St Augustine onwards, began to teach a doctrine of just war, which required soldiers to spare women and children, to accept the surrender of enemies who had dropped their weapons, and to accept the inviolability of inhabited places where resistance was not offered. By the early 20th century, both military discipline and the treatment of civilians and non-combatants had changed irrevocably. The First World War saw relatively few crimes which could be described as ““war crimes””, despite the appalling bloodshed of that conflict. But in 1919, following the Amritsar riots in the Punjab, 379 unarmed Indians were massacred on the orders of a British officer, General Dyer. The subsequent government commission of inquiry severely censured Dyer and he was required to resign his commission. In the Second World War, noble Lords may recall that US General George Smith Patton was severely reprimanded for assaulting one of his own soldiers, and of course by then the treatment of prisoners of war was governed by the Geneva Convention. The UK ratified the European Convention on Human Rights without reservation in 1951. The primary purpose of Article 6 is to ensure a fair trial for the individual. In more recent history, we have had our own experiences in Northern Ireland, including the Private Clegg case and, before that, the Bloody Sunday shootings. As my noble friend Lord Moonie indicated, and he has a great deal of experience in this area, it has now long been the case that British soldiers and servicemen have been accountable for their behaviour towards civilians and non-combatants, especially where lethal force has been used. None of this is new. Service personnel were investigated for alleged crimes in the Falklands and Bosnia campaigns. Your Lordships know only too well that our Armed Forces face extremely testing conditions in Iraq and Afghanistan—the latter was mentioned by the noble Lord, Lord Garden—where the threat of roadside bombs and suicide bombers is ever present. British servicemen and women carry out their duties with tremendous courage and professionalism. If mistakes are made in the name of self-defence or in the heat of battle, the law and the courts should show understanding. Members of the Armed Forces face daily threats and stresses that most of us in this country thankfully will never have to confront. But where there is wilful mistreatment or the reckless taking of innocent lives, British soldiers must be held to account. I believe that the contribution of the noble Lord, Lord Garden, would support that view, as would that of the noble and gallant Lord, Lord Bramall. The British public, world opinion and the vast majority of Her Majesty’s Armed Forces would expect no less. As General Sir Mike Jackson, head of the British Army, said:"““There are those opine that there should be no prosecution in any circumstances whatever because the (soldiers) are doing their duty. I cannot agree. The rule of law is the bedrock of this country. The absence of the rule of law led to the situation for which intervention was made in the first place””." He went on to accuse those who criticised the prosecutions of making,"““outrageous slurs on the integrity and character””," of Army investigators, and added:"““It is a calumny to imply that people are dancing to a political tune””." The noble Lord, Lord Garden, quoted Major-General Howell’s similar remarks. We should be careful not to cast aspersions on the integrity of those who have made the judgment to prosecute even though we may disagree with those decisions. We can, however, unite to express concern about the inordinate delay in bringing prosecutions in some of those cases in the first place, a point made by the noble and gallant Lord, Lord Bramall. I hope my noble and learned friend the Attorney-General will reply to this point in his summing up. On the current relationship between the Law Officers and the service prosecuting authorities, my understanding is that the Attorney-General answers to Parliament for the prosecution decisions and overall policies of the prosecuting authorities. The Army Prosecuting Authority is subject to the general superintendence of the Attorney-General, a point already mentioned today. He is not responsible for its staffing, resourcing and general establishment, which remains the responsibility of the Secretary of State for Defence. The Attorney-General and his predecessors have exercised this general superintending function to offer advice and general guidance to senior staff of the three service prosecuting authorities. Since 2003, the Army Prosecuting Authority has consulted the Attorney-General on a total of 12 serious Iraqi cases involving allegations against UK servicemen. The APA decided to proceed with four of these 12 cases: one case has been dismissed, with no criticism made of the APA—I believe this was the case referred to by the noble and learned Lord, Lord Lyell of Markyate—one case led to conviction and two cases are proceeding. As my noble friend Lord Drayson said in your Lordships’ House in July of last year during the debate on the chain of command, the numbers of investigations are very small bearing in mind the number of personnel who have served in Iraq. Of the total of 176 cases mentioned during that debate, 151 were closed without any further action being taken. In 100 of those incidents, British troops had been fired upon. This needs to be seen in the context of the 70,000 military personnel who have served in Iraq. In conclusion, I hope that the process of justice within the Armed Forces will be much improved by the Armed Forces Bill, which seeks to consolidate the service discipline Acts into a single system of service law and to bring service law more closely in line with civil law—and here I probably differ with the noble and gallant Lord, Lord Bramall. It will introduce a joint prosecuting authority in place of the three separate existing prosecuting authorities. In particular, I welcome the intention to create a tri-services redress of complaints panel with an independent element. I believe that such a panel would be widely welcomed in Her Majesty’s Armed Forces, which remain the best armed forces in the world.