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Afghanistan: Independent Inquiry

Volume 724: debated on Thursday 15 December 2022

I will make a statement on an independent inquiry related to Afghanistan. My right hon. Friend the Secretary of State for Defence has commissioned an independent statutory inquiry under the Inquiries Act 2005 to investigate and report on alleged unlawful activity by British armed forces during deliberate detention operations in Afghanistan in the period from mid-2010 to mid-2013, and the adequacy of subsequent investigations into such allegations.

The decision has been informed by two ongoing judicial review cases known as Saifullah and Noorzai. The claimants in those cases assert that relevant allegations of unlawful activity were not properly investigated. The underlying events have been the subject of comprehensive service police criminal investigations, but the Ministry of Defence accepts that Operation Northmoor should have started earlier and that there may be further lessons to learn from the incidents, despite there being insufficient evidence for any prosecutions.

My right hon. Friend has asked the right hon. Lord Justice Haddon-Cave to chair the inquiry, and Lord Justice Haddon-Cave has stepped down from his role as senior presiding judge for England and Wales to focus on this task. He has valuable experience: he chaired the Nimrod review into the loss of RAF Nimrod MR2 aircraft XV230 in Afghanistan in 2006 and served as the judge in charge of the terrorism list between 2017 and 2018.

A copy of the terms of reference for this inquiry will be placed in the Library of the House. The inquiry will start work in earnest in early 2023 and will be fully resourced and supported so that it can carry out its work and report expeditiously. The Saifullah and Noorzai claimants have been consulted on the terms of reference but I will not comment further on ongoing court proceedings.

The UK’s armed forces rightly hold themselves to the highest possible operational standards. Operations must be conducted within the clear boundaries of the law and credible allegations against our forces must always be investigated thoroughly. The service justice system is capable of investigating and prosecuting all criminal offences on operations overseas and here in the UK. Defence has worked hard over recent years to ensure that the processes in place to maintain justice in the armed forces are effective, and that allegations of criminal wrongdoing arising from any future operations are raised and investigated appropriately.

It was a manifesto commitment of the Government to tackle the vexatious legal claims that have targeted our armed forces over recent years, but the Overseas Operations (Service Personnel and Veterans) Act 2021 was always designed to permit the investigation and follow-up of any serious allegations irrespective of time passed. We will of course ensure that all service personnel, veterans, and current and former civil servants who are asked to engage with the inquiry are given full legal and pastoral support.

I hope that the whole House shares my pride in our armed forces. They are renowned throughout the world for their courage, integrity and professionalism. We are profoundly grateful for their service today, as we were while they were deployed at our behest in Afghanistan.

I thank the Minister for advance sight of his statement and the terms of reference for Lord Justice Haddon-Cave. We welcome the special inquiry, the Minister’s confirmation that its work will start early in 2023 and his commitment to provide full legal and pastoral support. We recognise the bravery of all those who served in Afghanistan and the dangers we asked them to face—none more than our special forces, who carry out the most extraordinary missions with extreme risks to defend us and our allies.

Our British armed forces have a proud tradition of upholding the highest standards of military ethics, professionalism and international law. That is fundamental to a disciplined military force and to Britain’s standing and moral authority as one of the world’s leading democracies, so allegations of unlawful killings and cover-ups could not be more serious. This inquiry is essential to protect the reputation of our British special forces, to guarantee the integrity of military investigations, and to secure justice for those affected. The question is: will it do the job? Is it set up to succeed? Is the MOD—military, civilian and political—fully committed to making it succeed? Too often, it responds with denial and delay.

Over the last five years, Defence Secretaries have had three reports with more than 148 recommendations on how to fix failings in military investigations, yet one essential recommendation—the Defence serious crime unit—was launched only last week. When confronted with the BBC “Panorama” reports about these allegations in July, the MOD immediately dismissed them as “irresponsible, incorrect” and jumping to “unjustified conclusions”. When pushed by all parties, as well as senior ex-military figures, journalists and the judiciary, the Defence Secretary signalled this independent inquiry two weeks later.

On the terms of reference, can the Minister confirm that the inquiry will investigate to substantiate any allegations, not just investigate how the allegations were handled? Will the inquiry cover the full chain of command—military, civil service and ministerial? How can the inquiry’s independence be assured when it is housed within the MOD? On the declaration that the Secretary of State expects maximum co-operation from MOD personnel, will the head of the Army issue a similar statement or command to forces personnel?

The Minister knows but does not mention that similar allegations were made from the same period against Australian special forces in Afghanistan. They were investigated thoroughly via a special inquiry commissioned not by Ministers, but by the head of the Australian army, because getting to the truth should matter most to military leaders. Has the Minister or any other Defence Minister met Justice Brereton to understand his inquiry? If not, why not? If so, why are key features of his successful inquiry missing from this one?

In the Brereton inquiry, the judge had senior military not just judicial experience; he had legal immunities to get beyond the culture of silence; and he had legal powers to require documents and summon witnesses. If Judge Haddon-Cave considers that changes to his powers or terms of reference are required during the inquiry, will Ministers agree? This inquiry must succeed and we in the Opposition will do all we can to ensure that it does.

I am extremely grateful to the right hon. Gentleman for his comments. It is important to say that the inquiry is set up under the Inquiries Act 2005, which means that it will be a statutory inquiry under the control of Lord Justice Haddon-Cave. He will summon whichever witnesses he thinks fit and potentially compel them to give evidence under oath, as required by legislation.

The right hon. Gentleman asks whether the inquiry will involve the full chain of command, the answer to which is yes. He also asks whether the inquiry being housed in the Ministry of Defence is an issue, to which I would say no. Lord Justice Haddon-Cave requested that his team be based in the MOD so that he can have full access to IT systems, some of which are at a high level of classification. However, it is important that only he has access to the accommodation that has been set aside for this purpose, to maintain the appearance and actuality of complete independence from the MOD, about which I can give the right hon. Gentleman full assurances.

The right hon. Gentleman asked about Australia. The Australian investigations made it clear that there are no British persons of interest as a result of that inquiry. It is also important to say clearly that allegations made to a television production company are not the same as allegations made in court or, indeed, to a statutory inquiry. In the light of the “Panorama” report to which the right hon. Gentleman referred, service police, as I understand it, have contacted the BBC to ask for evidence. I am not aware of any new evidence having been provided beyond that which has already been investigated.

It is important to underscore the fact that Lord Justice Haddon-Cave has been selected by the Lord Chief Justice because he is the most senior of judicial figures. With that, of course, comes the full knowledge and understanding that he is acting independently. I have no doubt that he will go wherever the evidence takes him, and that is the reason that such a senior figure has been appointed to this extremely important task.

I commend my right hon. Friend for updating the House on this inquiry. Obviously, the overseas operations Act helped to break the cycle of investigating soldiers for historic claims, but it maintained the position that, where there is compelling evidence against individuals, action can be taken. Will he therefore update the House on what will be taken forward from this inquiry and what the implications are for the Act?

I am grateful to my hon. Friend for that question. He will be aware that the overseas operations Act was designed to raise the hurdle, in the sense that it was a commitment that we all made—those of us who stood on the Conservative manifesto—to deal with the repetitive, vexatious claims being made against our armed forces, which were causing them significant difficulty. These people have served our country well; we owe them a duty of gratitude and we need to ensure that they are not the target of repetitive, vexatious claims by money-grubbing lawyers—that is the basis of this.

None of the members of the armed forces whom I know want to see their reputation dragged through the mire. It is hardly surprising that people in Ukraine look to the UK at this time for training and for support in the situation in which they find themselves. They know full well that the UK upholds the moral component of warfare like no other. That licence, as it were, comes with a price, and that price is ensuring that, when credible and serious allegations are made, we investigate them.

Nothing in the overseas operations Act will prevent serious allegations from being investigated, regardless of timeline, but my hon. Friend will be aware that those have to be serious allegations, and they cannot be repetitive. That is the security that we have given members of our armed forces and veterans, who were previously the butt of repetitive, vexatious legal disputes. I hope that gives my hon. Friend the reassurance he seeks.

I am grateful to the Minister for advance sight of the statement. I declare a personal interest, given that my brother served two tours of duty in Afghanistan, but not in the special forces.

I welcome the fact that the Minister said there is a credible requirement for the investigation. Although SNP Members might not agree with the hon. Member for Harrow East (Bob Blackman) about the overseas operations Act, I am glad the Minister, the Department and the Secretary of State for Defence at least believe that this inquiry needs to take place. However, I have a bit of a concern, which I am sure the Minister will seek to clarify. As a former member of the Defence Committee, and having sat on the previous Armed Forces Bill Committee, both of which, critically, discussed the treatment of women in the armed forces, I know there is grave concern that, when there is any type of investigation—especially if it is credible—the justice system does not view it properly.

I therefore seek reassurances from the Minister that the right hon. Lord Justice Haddon-Cave recognises the complexity of the case and understands the lived experience not only of those making the accusations, but—the Minister is probably right about this—those in the armed forces as well. Lord Justice Haddon-Cave must understand the overall complexity of the issues being investigated and take on board the entirety of them in any conclusions, because previous investigations—notably around the treatment of women in the armed forces—give me grave cause for concern.

I also want to put on record my commitment and that of my party to members of the armed forces, who play their role and put their lives on the line daily. On a personal note, I recognised that when my brother served two tours of duty in Afghanistan and one in Iraq. He and his comrades in arms put their best foot forward and did the duty they were asked to, but even they recognise that, sometimes, people make mistakes. If mistakes have been made, they need to be properly investigated, and the full weight of the law needs to be brought to bear.

I am grateful to the hon. Gentleman, and I pay tribute to his brother for his service. Justice Haddon-Cave is no ordinary judge; he is one of the most senior members of our judiciary, and he has been selected by the Lord Chief Justice for this task because of that. It therefore follows that he is perfectly capable of appreciating the complexity of this issue. I hope that that gives the hon. Gentleman the reassurance he seeks.

As for the further conduct of the inquiry, that will now be a matter for Lord Justice Haddon-Cave; it certainly will not be a matter for me. I underscore that this is an independent inquiry, and it would be entirely improper for me, from this point, to comment further on its conduct. As I understand it, Lord Justice Haddon-Cave intends to issue a statement of his own shortly.

This Minister, of all Ministers, will be aware that our armed forces veterans are acutely depressed and angry about the fact that their political masters sent them into this impossible war, where they faced an enemy who was utterly merciless, who had no regard to any conventions—Geneva or otherwise—and who was unspeakably cruel. Of course, the Taliban Government will never have any such inquiry into their own forces. I know that we have the overseas operations Act, and the Minister rightly said that it creates a presumption against vexatious claims, but I would like to tease out from him how the inquiry will have a carefully calibrated investigation, and also that the bar for prosecutions will indeed be high. Otherwise, we will inflict a severe blow on the morale of the veterans of our brave armed forces. None of them wanted to go to Afghanistan—we put them there.

I very much appreciate my right hon. Friend’s point. We have focused on individuals in the questioning so far, and I would like to point out that our principal concern is elucidating any systemic factors that have not been investigated fully as a result of the investigations we have had up to this point.

In particular, I would expect Lord Justice Haddon-Cave to be mindful of ensuring that we are compliant with our obligations under article 2 specifically, and articles 2 and 3 more generally, as we are required to be under our treaty obligations, and to learn things more generally about what went on that may help us to improve what we do. That is the reason for the investigation. It most certainly is not to pillory individuals or to seek to repeat the service investigations by the service police that have already been done, which have been externally and independently validated, if that brings any comfort to my right hon. Friend.

May I declare an interest as a former company commander with the special forces support group who served in Afghanistan? As such, I know that the overwhelming number of people who serve in our armed forces, and particularly in the UKSF, do so with huge distinction and extraordinary courage. As the Minister said, we can be very proud of their service. They rightly aspire to maintain the very highest of professional standards and adherence to the rule of law. After all, it is that which differentiates us from our opponents. As the Minister said, it is therefore necessary that, when serious allegations are made, they are investigated, but that needs to be done thoroughly and independently, so I welcome the statement that the Minister has made today.

Clearly, none of us would want to prejudge the inquiry, but, looking slightly to the longer term, has the Minister or the Department given any consideration to the potential merits of tasking the Intelligence and Security Committee to provide oversight of UKSF?

I rise again with a sense of trepidation, Madam Deputy Speaker, acknowledging the hon. Gentleman’s service in Afghanistan. The point that he has made has been made before. I think it was made when we covered some of this ground back in July. He will know the way that this part of our armed forces operates and the difficulties and constraints under which they operate. We are going through this process now with a statutory inquiry. That is a big deal. I expect Lord Justice Haddon-Cave to go everywhere he needs to go to discover the truth and make public all of it—so far as he can within the constrictions of national security.

With all due respect, I do not agree with the hon. Gentleman on having a further mechanism of auditing the operations of parts of our armed forces. It is probably right that we assure ourselves that all parts of our armed forces operate within the rule of law and that their rules of engagement are legal. He will be aware of the extraordinary lengths that defence takes, particularly now and in recent years, to ensure that everything it does is lawful. Personally, I am comfortable with that; I am confident that we do that. Although I acknowledge the hon. Gentleman’s suggestion—we keep everything under consideration, and it will be interesting to see what Lord Justice Haddon-Cave comes up with—I am not minded, at this point in time, to accept it.

Similar allegations against Australian special forces were investigated fully by an independent judge-led inquiry, backed by welfare support for troops and their families, to get the truth. The Minister has spoken of legal and pastoral support, but can he explain whether the UK inquiry will provide similar or better welfare support, and can he give us those reassurances today?

I think I can. As I speak, we are contacting those who may be affected by today’s statement to give them details of the support that is available to them. Anybody who is asked to be a witness in this inquiry will be contacted by the Ministry of Defence to explain what is available. To be clear, people who are requested to appear before Lord Justice Haddon-Cave will be provided with the legal and pastoral support that they need to get them through this. It is appropriate to put it on record that this statement will cause a lot of dismay and anxiety among those individuals who have served this country with great distinction. We understand that and I give the hon. Lady a commitment that we will do all in our power to make sure that we stand with them and give them the support that is required.

Can the Minister say whether any current or former members of the armed forces have been disciplined in relation to the special forces raid in Shesh Aba in August 2012 reported by the BBC?

I will not get into that. Lord Justice Haddon-Cave will investigate the matter fully and report in due course.

Just over a century ago, my father’s house—my father was a child of about the same age as some of the children who were shot during some of the incidents under investigation—was raided by British auxiliaries in the west of Ireland in a quite violent incident. I shall never forget that my grandmother, relating that story to me as a child, was eternally grateful to the British Army officer who intervened and stopped violence being perpetrated. It has always struck me that culture and leadership within our armed forces is key to our standing and reputation in the world. Does the Minister agree that principal among the outcomes from this inquiry should be clear co-operation from the leadership of our armed forces in making sure that it gets to the truth?

The hon. Gentleman has hit the nail on the head. There is that commitment right at the very top of our armed forces that we should get this right and that we should learn any lessons that need to be learned. I can give him that commitment. I entirely understand the point that he has made and the experience that he relates.

I do not mind being last in any debate; I am just very pleased to be given the opportunity to ask a question. The Minister, I think, has genuinely tried to answer the questions sensitively. With that in mind, will he outline the steps that are in place to offer support to any personnel under investigation, as similar proceedings that I and other Members in the Chamber are aware of in Northern Ireland have seen many innocent soldiers turning to addiction as a result of trauma and stress—I am aware of those cases personally. Will he confirm that innocent until proven guilty remains the standard for any investigation?

There are structures within the Army in particular to deal with the pastoral care of individuals who may be facing allegations. The Army operational legacy branch, for example, will be standing by to assist in this particular area. I reiterate the commitment that I gave earlier: anybody who is wrapped up in this business will be given everything that they need—legal and pastoral—to get them through this. We will stand by them. We owe them that, and I will make sure that that happens. I hope that that gives the hon. Gentleman the assurances that he needs.