Who guards the guardians? MoD support for former and serving personnel Contents

Conclusions and recommendations

Introduction

1.As a nation we expect our servicemen and women to conduct themselves at the highest levels of professionalism on operations. Where the rule of law is broken, justice must be done in military as in civilian life. Our inquiry has sought to test whether the professionalism demanded of the armed forces has been matched by the duty of care for them demanded of the Ministry of Defence during the IHAT investigations. (Paragraph 9)

Iraq Historic Allegations Team

2.Both the Secretary of State and Mark Warwick, the Director of IHAT, assured us that the IHAT’s caseload will be reduced to the hundreds by the end of January 2017 and to around 60 cases by the summer of 2017. We ask the MoD to provide us with monthly updates on the number of outstanding cases until the process is concluded. (Paragraph 17)

3.It is clear to us that legal firms were empowered by the MoD’s approach to IHAT to generate cases against service personnel at an industrial level. The MoD cannot claim that it has been a victim of the industry; nor can it claim that it had no way of foreseeing the creation of this industry. The activities of two law firms in particular, are now subject to investigations by relevant authorities which must remain a matter for them. The MoD must take responsibility for creating an environment in which the generation of cases—with little or no supporting evidence—was able to occur. They must identify remedies to ensure such a situation could never happen again. (Paragraph 26)

4.While IHAT operated within constraints of the legal judgements set down by the courts, it failed to discriminate sufficiently between cases which were credible and cases which were not. The tools to do so are available to the MoD; IHAT must now use the rulings from Mr Justice Leggatt to dismiss claims based on poor evidence in an expeditious manner. (Paragraph 27)

5.The Secretary of State should explain why this change of policy has been introduced. (Paragraph 32)

6.It is disappointing that we were unable to hear the testimony of individual service personnel during this inquiry. Our predecessor Committees have benefited from personal experience of members of the armed forces, service families and MoD employees through written evidence, oral evidence and through an on-line survey. (Paragraph 35)

7.We invite the Secretary of State to discuss with us how the distinction between individual welfare matters and policy matters can be managed so that we can benefit from the personal perspective of soldiers without undermining the MoD’s legitimate concerns over who may give evidence on Government policy. The MoD will be aware that its refusal could appear to be an attempt to suppress criticism of its failures of duty of care by serving personnel. (Paragraph 36)

8.We recommend that the MoD establish an independent body within the MoD—with active Ministerial oversight—to investigate the level and nature of complaints of individuals subject to IHAT. That body should seek to engage with all those who have been involved in the IHAT process, either as a witness or as a suspect. Furthermore, we will expect the MoD to publish the results of such review. (Paragraph 39)

9.The IHAT process has now been running for seven years. By the time it has finished the cost to the taxpayer will be in the region of £60 million. A significant number of cases have still to be resolved and as yet, not a single conviction has been made. While the cost to the taxpayer is significant, the psychological and actual cost to individual soldiers is arguably greater. Their lives have been put on hold and their careers damaged, sometimes for years, because of allegations made against them—in many cases without any credible supporting evidence. The effects of this on the British military are profound and enduring. (Paragraph 40)

10.The UK military is clear that anyone from within its ranks who breaks the law must be prosecuted. A failure to do so would undermine the UK’s ability to conduct operations whilst at the same time upholding the rule of law. But despite massive expenditure, over seven years now, IHAT has failed to achieve even this. This is the greatest indictment of the organisation in its present form. (Paragraph 41)

11.IHAT has lost the confidence of service personnel, this Committee and the wider public. Furthermore, it is continually eroding the bonds of trust between those who serve, and their civilian masters. The MoD must direct that IHAT expedites its assessment of the remaining cases. As soon as the number of outstanding cases is reduced to the Secretary of State’s target of 60, IHAT must be closed with the cases transferred to the service police with the support of civilian police. (Paragraph 42)

The conduct of IHAT investigations

12.Despite assurances from Ministers in early 2016, the MoD has now acknowledged that between 300 and 350 potential witnesses and seven individuals under investigation, had been contacted without prior written notification. That it has happened at all indicates a lack of sufficient care for the individuals concerned. The first point of contact for a serviceman or woman, or a veteran should never be an unannounced approach by an IHAT employee, regardless of whether they are being treated as a witness or a suspect. We feel it is incumbent upon the MoD under its duty of care to ensure that in future, the first time serving personnel hear of their involvement with IHAT, either as a witness or as a suspect, it should be through their Commanding Officer. (Paragraph 56)

13.It is deeply disturbing that instances of malpractice by contractors working for IHAT have emerged. The use of intimidatory tactics including an example of a contractor falsely claiming to be a policeman, and the contacting of family members of service personnel without prior notice or explanation, are completely unacceptable. The actions of contractors are the responsibility of IHAT management. We conclude that they have failed in this duty. (Paragraph 60)

14.We believe that the actions of the IHAT investigators, and the way some have approached inquiries demonstrates a ‘civilian mind-set’ which lacks a sufficient appreciation of the environment of operations. A detailed understanding of the scenarios in post-conflict Iraq, for example, would have been of far more use to IHAT investigations. We believe that service police officers have a unique understanding of the operational environment for investigations of historic allegations. To ensure wider confidence of such investigations, we recommend that the IHAT caseload be transferred to the service police, with the support of civilian police, as soon as possible. (Paragraph 65)

15.Civilian contractors should only be used in exceptional circumstances. Where they are required, their numbers should be kept to a minimum. Any such employment must be preceded by extensive training on the unique circumstances of military operations and their impact on servicemen and women. The MoD must address this as a matter of urgency. (Paragraph 66)

16.We are deeply concerned about the use of covert surveillance by IHAT. Notwithstanding the assurances given that it would be used only in the most serious of cases, the questionable conduct of some external investigators means that this is a cause for serious concern. The Department cannot interfere in the direction of investigations, but it must provide detailed scrutiny of the exercise of these powers, and their use should be justified directly to MoD Ministers. That Ministers appeared either unaware or unwilling to address this aspect of IHAT’s investigation is unacceptable. (Paragraph 70)

17.For three years the MoD paid an individual to work for IHAT while he was in the employment of Public Interest Lawyers. Although the MoD told us that it had stopped payments when it became aware of this, the fact that it continued for such a lengthy period of time represents a serious failing for which the MoD must take responsibility. We ask the MoD for a detailed explanation of what pre-employment checks were made on the individual and how this conflict of interest was able to continue unnoticed for so long. (Paragraph 75)

18.The interviewing of alleged victims and witnesses in third countries was not prescribed by the court. Rather it was the result of IHAT’s interpretation of the court ruling. To date it has cost nearly £4 million, which included payment of the costs of PIL representatives. However, the MoD was unable quantify the total amount paid to PIL. We are deeply concerned that the MoD has used public funds to cover the costs of those who were bringing spurious and unassessed cases against former and serving personnel. (Paragraph 80)

19.We appreciate that, on occasion, the MoD may be advised to settle some cases without interviewing relevant individuals. However, the practice has gone too far. This approach can imply that someone is culpable without that person having had the opportunity to respond to the charge. We recommend that, before such payments are authorised, the individuals concerned are fully appraised of the claims and the reasons for the MoD’s course of action. (Paragraph 82)

20.The admission that training material for interrogations contained information which could have placed service personnel outside of domestic or international law represents a failing of the highest order. We expect the MoD to confirm that no cases under consideration by IHAT are based on the actions of individuals who were following that flawed guidance. If there are, we ask the MoD to set out how it will support individuals who are subject to claims arising from actions which their training advised was lawful. (Paragraph 86)

The way forward

21.We are deeply concerned that the MoD’s package of support for service personnel appears to be fragmented, inaccessible and largely unknown. The MoD must, as a priority, devise and publish a single, accessible framework which sets out the MoD’s responsibilities and the support soldiers and veterans can expect to receive. That framework must be widely publicised and understood throughout the chain of command. (Paragraph 95)

22.We welcome the Secretary of State’s announcement that the MoD will now meet the legal costs of soldiers being investigated by IHAT. If it comes to light that soldiers and veterans have already paid out legal expenses we recommend that the MoD commits to reimburse them. (Paragraph 100)

23.At present, the MoD’s decision to grant legal aid rests on whether or not an individual was “on duty” or not at the time of the alleged offence. We believe that this distinction requires greater clarity. We recommend that any alleged offence committed on a named and defined operation—for example Op TELIC—should come within the definition of ‘on duty’. (Paragraph 101)

24.Furthermore, we recommend that the MoD’s policy on legal aid be modified to ensure that no member of the armed forces has to pay out more for their legal aid than the cost of that representation. (Paragraph 102)

25.We recommend that the MoD’s package of support should include an assurance that all service personnel should have access to, and representation by, legal professionals who are experienced in service law for either retrospective or future on-going investigations. (Paragraph 105)

26.The IHAT experience has highlighted too many flaws in the manner in which investigations into historic allegations are conducted in the United Kingdom today. In the Annex to this Report we set out what we believe to be the key principles which should be adhered to in any future investigations. We look to the MoD to engage with these proposals when it considers future inquiries into the armed forces’ involvement in military conflicts. (Paragraph 106)

European Convention on Human Rights and the International Criminal Court

27.We welcome the Government’s intention to derogate from the European Convention on Human Rights under Article 15 of the Convention in the event of future conflicts. For clarity, we recommend that the Secretary of State—in conjunction with the Attorney General and the Chief of the Defence Staff—set out the conditions under which the United Kingdom could and would derogate from the European Convention on Human Rights. The MoD must set out the action that has been taken by other participants in the Iraq war who are subject to the ECHR to derogate from any part of the Convention. (Paragraph 113)

28.We further recommend that the Government sets out what amendments to the Human Rights Act would be necessary to ensure that any such derogation is both achievable and successful in protecting UK troops in future conflict from unnecessary widespread litigation. (Paragraph 114)

29.We are not convinced that the International Criminal Court would commit to investigate such a large case load which is based, to a great extent on discredited evidence. While due process must be seen to be done, we recommend that the MoD presents a robust case to the ICC that the remaining cases would be disposed of more quickly and with no less rigour through service law rather than IHAT. (Paragraph 120)

Conclusion

30.The United Kingdom ended its combat operations in Iraq in 2009. Eight years later, and some 14 years since the start of the conflict, a significant number of service personnel remain under investigation for alleged misconduct in that conflict. (Paragraph 121)

31.IHAT, the MoD-created vehicle for these investigations, has proved to be unfit for purpose. It has become a seemingly unstoppable self-perpetuating machine and one which has proved to be deaf to the concerns of the armed forces, blind to their needs, and profligate with its own resources. We look to the Secretary of State to set a firm and early date for the remainder of the investigations to be concluded, and for the residue of cases to be prosecuted by a replacement body which can command the confidence of the armed forces. (Paragraph 122)

32.A significant factor in this was the legal industry created around IHAT. That is now being dealt with by the SRA and Mr Shiner, the founder of PIL has now been struck off as a solicitor. The current Secretary of State is to be commended for his personal efforts in highlighting the conduct of law firms to the relevant authorities. However at the same time as it condemned those legal firms the MoD continued to authorise payments to them, including the use and payment of a middleman in Iraq who worked for both sides. Even if this was, as the MoD asserted, a contractual requirement, the failure to challenge the arrangement when those costs grew was a serious failing. Rightly or wrongly, it opened up to question the MoD’s commitment to supporting servicemen and women and veterans. (Paragraph 123)

33.Of equal concern is the fact that former senior military personnel have questioned the culture of Whitehall and its attitude towards the military. Again, this points to a lack of genuine understanding around the human side of military matters in Whitehall. Ministers must address this as a matter of urgency. They must show leadership and ensure that the well-worn statement of “our people are our finest asset” is reflected in the policies and decisions that are made. (Paragraph 124)

34.The MoD has made progress in its support for those under investigation. We welcome its recent announcements on funding legal aid for those under investigation, and the possibility of derogating from the ECHR in times of conflict. However, they are both works in progress. (Paragraph 125)

35.Our armed forces continue to strive to meet the highest standards of conduct. However, the perception of them on the International stage has undoubtedly been unfairly altered by this process, which in some respects has been self-inflicted. (Paragraph 126)

36.IHAT, and the subsequent explosion of so-called ‘lawfare’ in the United Kingdom has directly harmed the defence of our Nation. Unless the MoD learns the lessons of IHAT, the armed forces will be hindered in their ability to defend the Nation and the national interest. (Paragraph 127)

37.With the prospect of investigations into British deployments in Afghanistan and Northern Ireland, the Government must prove both in private, but especially in public that in adhering to the pursuit of justice and the rule of law, it does not lose sight of its moral responsibility and its commitment to the Armed Forces Covenant with those who have served. (Paragraph 128)

38.There is a deep unfairness at the heart of the IHAT process and this is in danger of spilling over to other conflicts. Our Report offers the MoD an opportunity to reset the balance. (Paragraph 129)





9 February 2017