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Gulf War: Illnesses

11.22 a.m.

Lord Morris of Manchester: My Lords, I beg leave to ask the Question standing in my name on the Order Paper. In doing so, I declare an interest as honorary parliamentary adviser to the Royal British Legion.

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The Question was as follows:

    What further representations they have received concerning the Royal British Legion's call for a public inquiry into medically unexplained illnesses among veterans of the 1990–91 Gulf conflict and related issues.

Baroness Crawley: My Lords, the Royal British Legion and others continue to campaign for such an inquiry. However, the Government are still not convinced that a public inquiry would help. The possibility that we may look again at this matter has not been ruled out. However, in the present circumstances, it is only through the programme of research initiated by the Government that we are ever likely to establish the causes of Gulf veterans' illnesses.

Lord Morris of Manchester: My Lords, I am grateful as always to my noble friend. Is she aware of the letter sent to me by Stephen Irwin QC, the chairman of the Bar Council, and other lawyers, backing the legion's call for an inquiry and insisting that difficulties in proving fault in the courts—where the burden of proof is put on the sick veteran—should not inhibit Ministers from pursuing "a process of conciliation" with the ex-service community,

    "designed to make good by ex-gratia payments the deficiencies of the War Pensions Scheme"?

Does not the lawyers' letter to me make all the more worrying the Government's new proposal to switch the onus of proof from the MoD to veterans in war pension cases where today—as my noble friend Lord Bach said in the House, at col. 1138 of the Official Report for 22 January 2004—"only a reasonable doubt" has to be raised "for claims to succeed"? Surely that proposal must now be urgently reconsidered.

Baroness Crawley: My Lords, my noble friend, as we know, has worked tirelessly with the Royal British Legion on behalf of Gulf War veterans. We thank him for that. I wish to reassure him that the MoD listened very carefully to the concerns of the Royal British Legion. On the issue of the letter which he raises, I am certain that the department will give it careful consideration. However, I have to say to him that the Government are not persuaded on the basis of information currently available to it that there is a case for additional no-fault compensation to Gulf veterans—the ex gratia payments which he mentioned—separate from and above that which is already available to both Gulf and other veterans. As far as the proposed Armed Forces compensation scheme is concerned, my noble friend will know that both Houses of Parliament will have an opportunity very soon to debate that.

Lord Astor of Hever: My Lords, what lessons were learned about multiple inoculations in the first Gulf conflict, and were they fully applied last year?

Baroness Crawley: Yes, my Lords; lessons were learned from the multiple inoculations—the "cocktail", as it is sometimes called—as regards Op TELIC and they were applied to most of those serving in the recent Gulf

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operation. So lessons were learned, and we shall continue to learn lessons. That sort of cocktail will not, we hope, be used again.

Lord Campbell of Croy: My Lords, have the Government an estimate of the number of veterans who are still in this situation with illnesses of this kind?

Baroness Crawley: My Lords, I do not have that brief in front of me. However—and I shall write to the noble Lord if I am not correct in this figure—up to 2,000 veterans and their families have given notice that they will look for compensation should the legal circumstances arise where their claims can be met. I shall write to the noble Lord on those figures.

The Countess of Mar: My Lords, is the noble Baroness aware that there is quite a large cohort of veterans from the Afghan war and from the present Gulf conflict who are suffering from the effects of multiple vaccinations? The lesson has not been learnt. It is particularly the case with the TA and the reservists. Can the Minister tell us why Her Majesty's Government did not do what the Americans did with their home guard and ensure that they were vaccinated prior to any conflict? Their vaccinations are kept up to date now.

Baroness Crawley: My Lords, I would to some extent refute what the noble Countess has said. From what I have been told, I believe that inoculations were given according to a timetable before the most recent conflict and were not given all together. However, I shall write to her if I am not correct.

Lord Redesdale: My Lords, can the noble Baroness say whether work is being done to investigate the anecdotal evidence that there have been a large number of birth defects among the children of those who served in the Gulf conflict? Would it not be helpful to have a public inquiry? Although the Government talk about compensation and pensions being given to servicemen, that is obviously not the case until they recognise Gulf War syndrome as regards the dependants of veterans.

Baroness Crawley: My Lords, I shall write to the noble Lord on the issue of birth defects. He will know that a great deal of research is being done both by the MoD and the Medical Research Council and that a number of pension benefits are available to ill Gulf War veterans which are taken up both by themselves and by their families.

Lord Craig of Radley: My Lords, is it not the case that the MoD and the Government continue to hide behind the excuse that further research is necessary? After 13 years, surely the time has come to appreciate that this research will never be conclusive and that ex gratia payments to resolve this ongoing distress with the war veterans should be considered actively and taken forward.

Baroness Crawley: My Lords, I hear what the noble and gallant Lord has to say, but we are not hiding behind

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the ongoing research programmes. The research programmes are extremely complex and we cannot hurry the assessment of those results. Some of that research has now been completed and final results are due to be published this year. So I would refute that and say that we are not hiding behind research.

Katharine Gun

11.30 a.m.

The Attorney-General (Lord Goldsmith): My Lords, with the leave of the House, I wish to make a Statement about the prosecution of Katharine Gun. I am afraid that opposition Peers have only just received a copy of the Statement; I am afraid that it had only just been completed.

Yesterday at the Central Criminal Court, the Crown offered no evidence in the case of Katharine Gun. Ms Gun had been charged under Section 1 of the Official Secrets Act. The effect of offering no evidence was that the case against Ms Gun was discontinued.

I hope that it will help the House if I first explain what the process is in respect of prosecutions under the Official Secrets Act. Prosecutions under it are governed by the normal rules applied by the Crown Prosecution Service when considering any prosecution—the code for Crown prosecutors—and there is the additional requirement of the Attorney-General's consent before a prosecution can go ahead.

I should say at the outset that, when making decisions under the code for Crown prosecutors, the Crown Prosecution Service acts in the public interest and decisions for which it is responsible are taken by it independently. I also remind the House that, when making decisions about whether to consent to a prosecution, the Attorney-General makes his decision in the public interest, and not in the interests of the Government.

When the Crown Prosecution Service is considering a prosecution under the Official Secrets Act, the normal code rules require that it first considers the sufficiency of the evidence—evidence to make out the case and evidence to rebut any defence which might be available and might be raised. It will not take any further action if it thinks that there is insufficient evidence. If its view is that there is a realistic prospect of conviction—that is, that the evidence is sufficient to make it more likely than not that a jury would convict—it then considers the public interest test.

In the Gun case, the evidential test was, in the view of counsel instructed by the Crown Prosecution Service and in the view of the Director of Public Prosecutions, met. The evidential test having been met, the CPS next moves on to the public interest test. That test is, quite simply, whether the prosecution would be in the public interest. In the case of this prosecution, as it was under the Official Secrets Act, the prosecution required the consent of the Attorney-General.

When considering whether to consent to a prosecution under the Official Secrets Act, I as the Attorney-General will carry out a Shawcross exercise—that is, I will seek

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the views of any ministerial colleague who may have an interest in the case. That is so that I can be informed of their views of the public interest considerations of the case that are within their particular ministerial responsibilities. When they express their views, I, as previous Attorneys-General, will take them into consideration when deciding whether to give my consent.

In the Gun case, the view of the independent prosecutor, Senior Treasury Counsel Mr Mark Ellison, and his junior, Mr Ed Brown, on the review of the evidence available at the time was that it afforded a realistic prospect of conviction. The Crown Prosecution Service applied for my consent, and I undertook a Shawcross exercise. I did that by way of a Shawcross letter to the Secretary of State for Foreign and Commonwealth Affairs, in view of his departmental interest, which was copied to other interested ministerial colleagues. Views were expressed but, as always with the Shawcross exercise, the decision was mine. I gave my consent to the prosecution on 13 November 2003.

Under the code, it is the obligation of the prosecutor to keep under review the prospects of a conviction resulting as a case progresses. If on that review the prosecutor forms the view that the evidence is such that there is no longer a realistic prospect of conviction, it is his duty to withdraw the prosecution. Counsel reviewed the case. The decision not to proceed with the prosecution was a decision made by the Crown Prosecution Service after consultation with me. It was based on the advice of Senior Treasury Counsel in the case. The evidential deficiency related to the prosecution's inability within the current statutory framework to disprove the defence raised on the particular facts of the case.

The view of Senior Treasury Counsel and of the Director of Public Prosecutions was that there was no longer a realistic prospect of conviction. At the Central Criminal Court on 25 February 2004, Senior Treasury Counsel therefore informed the court that the prosecution was offering no evidence as there was no longer sufficient evidence for a realistic prospect of conviction.

Perhaps I should, at this stage, tell the House of a statement made this morning by the Director of Public Prosecutions, Mr Ken Macdonald QC. I apologise as I do not have a copy of it, but I shall make it available to opposition Members when I can. However, I shall read it now. It is a Crown Prosecution Service press release, and it states:

    "Senior Treasury Counsel prosecuting this case gave advice, with which the Director of Public Prosecutions fully concurred, that there was no longer a realistic prospect of convicting Katharine Gun.

    As has been commented upon there was, in this case, a clear prima facie breach of section 1 of the Official Secrets Act 1989.

    The evidential deficiency related to the prosecution's inability, within the current statutory framework, to disprove the defence of necessity to be raised on the particular facts of this case".

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The press release concludes by stating:

    "This determination . . . had nothing to do with any advice given by the Attorney General to Government in connection with the legality of the Iraq war. It was also a determination made in advance of the defence request for disclosure which came on 24 February 2004.

    The Attorney General was consulted and concurred.

    But the decision to offer no further evidence was one made by the Crown Prosecution Service as an independent prosecuting authority. It was a decision taken solely on legal grounds and in accordance with the Code for Crown Prosecutors, free from any political interference".

I recognise that many in the House will want to know more about the detailed basis on which counsel concluded that there was no longer a realistic prospect of conviction. However, as the matter concerns issues of intelligence it is not appropriate for me to do so, even to this House. As to the impact of the decision on the conduct of future prosecutions, it is the case that the substantive law is always kept under review and the effect of particular prosecutions on the substantive law considered.

My Lords, that concludes the Statement.

11.37 a.m.

Lord Howell of Guildford: My Lords, I am very grateful to the noble and learned Lord the Attorney-General for making the Statement. As he said, it has come rather suddenly, and therefore there has been very limited opportunity to see either the text of his Statement or the press release to which he referred. Indeed, the latter has not yet been made available at all, as he said.

Nevertheless, it is an important Statement and I am grateful for it, because there are some very puzzling and curious aspects of the case that it is right for noble Lords to address. The obvious one is about why the decision to drop the case was made so late in the day. Why on earth was it not made earlier? Why did it become apparent so late that the evidential basis for carrying forward the case had changed? Although the noble and learned Lord gave reasons to do with intelligence on why he could not expand on that sudden inability late in the day to pursue the case, it leaves a mystery hanging in the air. I therefore press him to give a little more explanation on the matter, bearing in mind all the constraints on him, which are perfectly proper.

Can the noble and learned Lord confirm that, entirely properly and within the bounds of established conventions, he discussed the case with the Director of Public Prosecutions? He was perfectly entitled to do that. Can I confirm—his Statement indicated it—that he discussed it with Cabinet colleagues? That again is within the bounds of the conventions. Where does the aspect of the Foreign and Commonwealth Office legal adviser's own advice to the Government on these matters come into the picture? Is it correct that that legal advice, which is tendered by a lady who, I think, has since resigned from the Foreign Office—the Foreign Office legal adviser—was available to the defence in this case? Would it have had to have been

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published if the case was continued? I think that is a matter that your Lordships would like to consider as possibly relevant to the whole handling of this matter.

In the short time available, although there are wider implications, I think there are no further points but those key ones that I would like to express. I repeat the mystery in our minds about why the evidential basis so suddenly and so lately changed and what was the nature of that change; and I just seek agreement and assurance from the noble and learned Lord that he would always support the principle that the political process in our country be kept strictly separate from the administration of justice. I know he believes in that and I know that the noble and learned Lord the Lord Chancellor keeps telling us he believes in that as well. Indeed, he claims that his plans to go forward with his current ideas are based on that belief and, therefore, we all want the strongest possible assurance that no breach of that principle has in any way occurred in this case. Therefore, it is important that we understand a little more about why the evidential basis changed; and until we understand that, I am afraid that a mystery will remain hanging in the air.

11.41 a.m.

Lord Goodhart: My Lords, I think the key passage in the Statement is the one where the noble and learned Lord the Attorney-General, says:

    "The evidential deficiency related to the prosecution's inability within the current statutory framework to disprove the defence raised on the particular facts of the case".

I note that I think those exact words were also repeated in the press release from the Director of Public Prosecutions.

The Attorney-General says that he cannot tell us why counsel advised that there was no longer a realistic prospect of conviction. But he can tell us what the defence was—why the defence of necessity was raised. What were the contents of the defence statement that raised the defence of necessity? What were the particulars of that defence? What further documents did the defendant request disclosure of? Will the defence statement, as it stands, be disclosed now, because that cannot be subject to the Official Secrets Act?

To take the matter a little wider, the e-mail that was leaked was about the bugging by American intelligence of the foreign embassies—the embassies of the countries that were regarded as potential swing voters on the second resolution—which, at that time, this country and the USA were actively seeking. Does the noble and learned Lord agree that the bugging of foreign embassies is contrary to international law? Is Clare Short correct in her belief, as stated on the "Today" programme this morning that her meeting with Kofi Annan was bugged and, if so, is that something which is legal? The fact that the embassies of the swing vote countries were being bugged indicates that the second resolution from the United Nations was thought to be a matter of very great importance. How does that fit in with the view of the noble and learned Lord that Resolution 1441 and the earlier resolutions were enough without a second

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resolution? Is it correct that the Foreign and Commonwealth Office was arguing that the second resolution was necessary to give legality to the invasion?

It is noted that Elizabeth Wilmshurst, the lady to whom the noble Lord, Lord Howell, referred earlier, confirmed in the Guardian today that she resigned from the Foreign and Commonwealth Office because of her disagreement with the conclusion that the war was justified. That surely confirms the need for the public to see the whole of the Attorney-General's advice if, indeed, anything more than the one paper statement released by the Attorney-General does in fact exist.

11.44 a.m.

Lord Goldsmith: My Lords, I start by thanking the noble Lord, Lord Howell, for welcoming the Statement. Let me deal first of all, if I may, with his questions and then move to those raised by the noble Lord, Lord Goodhart.

I entirely understand—and that is why I said what I did in my Statement—that noble Lords would wish to know more, if they could, about the detailed reasoning of senior Treasury counsel with which the Director of Public Prosecutions concurred. I have indicated that, because of certain constraints which I have identified in the Statement, it is very difficult for me to do that. And I, in a sense, regret that too, because I would welcome nothing more than for your Lordships to see fully that some of the suggestions that have been made that I have seen in newspapers are completely without foundation.

However, I have to say to noble Lords this: the Director of Public Prosecutions has very clearly stated in the Statement that I read, and of which copies I hope will very shortly be available, that the decision was—I repeat—a decision by the Crown Prosecution Service on the basis of advice from senior Treasury counsel, in which the Director of Public Prosecutions concurred, that there was,

    "no longer a realistic prospect of conviction",

and that he has said that it was a decision on solely legal grounds, free from any political interference. I have, therefore, to ask noble Lords to accept, recognising the difficulties that I am in—and I wish I were not in them either—that what the DPP has said about the decision and what I have confirmed about the decision is the fact. I ask noble Lords to accept that from him and from me.

The noble Lord then asked me whether I can confirm that I did discuss the case with the Director of Public Prosecutions. He was good enough to say that it would have been perfectly proper to do so and, of course, he is right about that. Of course I discussed that with the Director of Public Prosecutions. I had given my consent originally, it was plainly right for him to consult me in relation to the matter and, of course, I consulted with him and, indeed, wanted to hear directly from senior Treasury counsel what his view was as well.

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The noble Lord then asked me whether I had discussed this matter with Cabinet colleagues. I indicated in my Statement that at the outset I conducted what is known as a Shawcross exercise. Noble Lords will recognise that that is a reference to the late Lord Shawcross—Sir Hartley Shawcross when he was Attorney-General—who made a very important Statement in another place in 1951 which explained why it was right for Attorneys-General to seek to be informed by colleagues of matters affecting the public interest. He made clear, as I have made clear, that having been informed, it is a matter then for the Attorney to reach his decision and his decision alone. I can entirely confirm that it was. I indicated that I received views in response to the letter that I had sent.

When it came to the Crown Prosecution Service and counsel raising their concerns about the prosecution continuing—as I have said counsel's view was that there was no longer a realistic prospect of conviction—then, because the Foreign Secretary has statutory responsibility for GCHQ, which is what this is all about, he spoke to me by telephone on 14 February and at a meeting on 24 February about this case. The purpose was to inform the Foreign Secretary about the advice I had received relating to the continuation of the prosecution. The Foreign Secretary took no part in decisions relating to the discontinuation of the prosecution.

I was also asked by the noble Lord why this was so late in the day. May I just correct one matter, because I think that a point is gaining currency that the trial was due to take place yesterday. It was not. Yesterday was the plea and directions hearing, which is essentially the first hearing in the Crown Court. No date for trial had been set. No directions had been given for the trial. This certainly was not at the eleventh hour. On the contrary, this was still at quite an early stage in the case. The reason the decision was taken was, as I have indicated, the review by counsel of the case and the material in order to comply with his obligation under the Code for Crown Prosecutors to keep under review whether there was a realistic prospect of conviction. That was the reason for it.

Noble Lords again, I hope, will agree that, that very important decision being made by the independent prosecutor, it was right that the case should be brought to an end as soon as possible. And that is what happened by the statement yesterday.

I move on to a question raised about a report which, I understand from noble Lords, appeared in the Guardian this morning, which I have not seen. That concerns the position in relation to the Foreign Office and some particular adviser. I cannot comment on the reasons an official in another department chose to leave the service and I do not intend to do so. That is a matter for her and for the department. But I repeat this: the decision to stop the case was not in any way based on considerations in relation to the legality of the war or in relation to questions of disclosure of anybody's advice. It was on the basis of the view of senior Treasury counsel, concurred in by the Director of Public Prosecutions, that there was no longer a realistic prospect of conviction.

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A very important point was made by the noble Lord, Lord Howell, at the end and I want to deal with that. He asked me whether I could give him an assurance that I would always support the strict separation of the political process from the prosecution process. He was good enough to recognise that that is a principle in which I strongly believe and I can unreservedly assure him that when it comes to prosecution decisions I regard it as extremely important that they are made independently of political considerations. I can also assure him and the House that this decision was also made independently of political considerations, as the Director of Public Prosecutions, in his release, has confirmed.

I turn to the questions raised by the noble Lord, Lord Goodhart. He asked me whether I can say more about the contents of the defence statement. I am told that no defence statement has in fact yet been received, but in the initial interviews Ms Gun gave an indication of what, in her mind, her justification for her action was. It was on the basis of that and, as the Code for Crown Prosecutors would require, the prosecutor's own consideration of the case that thought was given to what the defence was likely to be and therefore how to meet that defence.

I am aware of a statement made—noble Lords will forgive me because I have seen no such document, I can confirm. There was a defence request for disclosure, as is apparent from the statement by the DPP, which I have read, which was received on 24 February. The Director of Public Prosecutions makes the point that that was received after the determination not to proceed with the case had been made. I do not have a copy of that. I have seen—as noble Lords have seen—some suggestions in the newspapers as to what it contains, but I cannot confirm what it contains because I have not personally seen it. I am seeking to assure noble Lords that that was received after the determination had been made and it is not because of that request for disclosure that the prosecution did not proceed.

The noble Lord, Lord Howell, then asked me questions on comments which have been reported from Miss Clare Short. Noble Lords will know that the Government do not comment on intelligence matters. As a matter of practice, they do not do that. But the Government do give this assurance: that the British security services always act within domestic and international law.

Noble Lords will have heard that statement from successive administrations of both political parties. It has been a standard and important line that is made. And noble Lords will know that there are other mechanisms by which the regularity of the way that our security services operate are dealt with. Noble Lords will be well aware of provisions under various Acts, of the commissioners, of the opportunity to make complaints, and of reports which are made to Parliament—or made to the Prime Minister and then laid before Parliament—concerning the review by commissioners of the operations of the security services. But there is nothing new about that statement at all.

The noble Lord, Lord Goodhart, took the opportunity to go beyond the position in relation to this particular case, as I see it, to pick up a question

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which has been debated before in your Lordships' House about the legality of the war. Let me just say this, because I have said it before: at the time we started military action, it was my own considered and honest view that military action was lawful based on the repeated failure of Saddam Hussein and his regime to comply with multiple United Nations Security Council resolutions, in particular United Nations Security Resolution 1441, which made clear that there had been material breaches and that there would be, in the judgment of the whole of the Security Council, further material breach if Iraq did not wholly and unconditionally comply with the terms of the resolution. And the effect in law, in my opinion—and I understand it to be the opinion at least of the Official Opposition Front Bench as well, repeatedly stated—was that the authorisation to use force, which had been given in earlier resolutions by the United Nations, revived.

That is why 1441 said in terms that there would be serious consequences if there were not full and unconditional compliance. I believe that was the position at the time we engaged in action. I believe today it was the correct legal position and I explained that in the Answer I gave in this House to my noble friend Lady Ramsay. It was further explained in a longer document delivered to the Foreign Affairs Committee on the same day by the Foreign Secretary, which set out the United Kingdom Government's view on the basis of legality. That document, for example, pointed out that the same legal analysis of revival of the earlier resolution had been relied upon by successive governments—governments of both main political parties—for taking military action previously in relation to Iraq and had been expressly approved by a former United Nations Secretary-General. Of course I am aware that others took a different view. That was abundantly apparent at the time. Opinions were published and letters came out in the Guardian. But that was the view that after considered reflection I believed was the correct position.

I hope that I have answered all the questions.

11.58 a.m.

Lord Wright of Richmond: My Lords, having spent much of my time in my final years in the Foreign and Commonwealth Office dealing with security and intelligence matters—in particular with relations with the intelligence agencies and GCHQ—I have to say that I find the decision to drop this case and the implications of it for the future handling of secret intelligence, in particular for what are called "crises of conscience", extremely disturbing.

I believe I am right in recording that following the Ponting case a counsellor was appointed to help individuals in the intelligence and security agencies—I think I am right in remembering that that included GCHQ but it may not have done—faced with crises of conscience about intelligence matters. Can the noble and learned Lord tell us whether that post still exists; whether the counsellor was used in this case; and whether Mrs Gun consulted him? If not, I suggest that

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the existence of a counsellor, if he is still in post, is brought to the attention of all employees in the security and intelligence agencies.

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