Professor Richard Ekins, Dr Jonathan Morgan and John Larkin QC gave evidence.

I hope that Professor Ekins can now hear proceedings. Will witnesses say for the record their name and designation, so that we may confirm that we can hear you?

Professor Ekins:

I am Professor Richard Ekins. I am head of Policy Exchange’s Judicial Power Project and Professor of Law and Constitutional Government at the University of Oxford.

John Larkin:

I am John Larkin QC. I am in private practice now in Belfast—[Inaudible.]

Your sound is not very clear, Mr Larkin, so I am going to see whether we can have that adjusted. Will you repeat what you have just said?

John Larkin:

I am John Larkin QC. I am counsel at the Bar of Northern Ireland, and practising there.

Please try to get as close to your microphone and to speak as robustly as you can.

John Larkin:

I apologise in advance, Chair. I am afraid that you have the alarming choice of seeing me leering forward or perhaps not hearing me. We will sacrifice aesthetics in favour of audibility.

We will take hearing you—that is our priority. If our two witnesses online will bear with us on the logistics, we are joined in the room by Dr Jonathan Morgan. Dr Morgan, will you introduce yourself for the record?

Dr Morgan:

Hello. I am a reader in English law at the University of Cambridge and a fellow of Corpus Christi College. As you might be aware, I co-authored with Richard Ekins a paper called “Clearing the Fog of Law” for Policy Exchange in 2015. I imagine that that is why I am here, but you might be able to tell me better.

Excellent. I am going to call Kevan Jones to start the questions, and I would ask that he and others indicate whether they are addressing a question to a specific witness or to all the witnesses.

This is a general point for everyone. There is a five-year cut-off period in the Bill as outlined. Could you each consider the justification for that and why it should not be higher?Q60

Perhaps, if the question is to everyone, we will start with you, Dr Morgan, in the room, and then go to Professor Ekins and Mr Larkin.

Dr Morgan:

My expertise is in private law—so, tort law—and I imagine that we will come on to that later. There, you have time limits of three years, six years, one year. In my view, there is no ultimate principled way of defending a particular time limit. Five years is obviously some kind of compromise. Ten years was originally proposed; that has been reduced to five. There seems to be no logical answer, certainly, as to that particular time period. It is a balancing act.

Professor Ekins:

I agree with everything that Dr Morgan has just said. All I would add is that I presume five years has been chosen with a view to allowing a sizeable period of time to pass during which—[Inaudible]—can be brought in the customary fashion. After five years, a somewhat different regime obviously applies, although it might be too strong to call this a cut-off period. There is always something somewhat arbitrary about procedural time limits. As Dr Morgan said, three years and six years are used in civil law; the criminal law does not tend to do this so often, so I do not think this is a salient number—to my knowledge.

John Larkin:

I agree. There is no magic in the number five; that is a matter of policy choice.

Q Thank you for that, but the difference here is that, unlike with other time limits, there is a presumption that someone will not be prosecuted. There are two things to say on that. One is, are there any other examples of where we have that in law? Also, would it not lead, possibly, to the decisions of the Attorney General not to prosecute—because you have pre-empted that, in effect, in the Bill—opening the cases up to the UK courts for judicial reviews and other things?

Dr Morgan:

On the second of those questions, which is whether the Attorney General’s decision not to prosecute could be challenged in court, I think that, yes, absolutely there is a risk of that, and I think the Minister, in a letter that he wrote to the Defence Committee, accepted that that was the case, but expressed the view that the courts would have to take account of the context that it is a quasi-judicial decision, and that they should respect the Attorney General’s decision. But I suspect that it is very strongly likely that it would be reviewed. How successful that would be is hard to say in the abstract, but it could be challenged, in my view.

Q Are there any other instances where you have in law a presumption not to prosecute before you have actually done the investigation?

Dr Morgan:

Criminal procedure is not my area, but I am not aware of any others in UK law. There are references to limitation statutes in other jurisdictions. I think that the example given is that, in French law, there is a 30-year period, which is very much longer and which apparently does not apply to war crimes, so that is almost the mirror image of what is in the Bill.

Q Yes, but the unique thing about this is not the time limit. I accept that there are time limits for various things in civil law as well as criminal. The difference here is that we are setting off on a presumption even before investigation that someone is not going to be prosecuted. Is that not putting the cart before the horse? You are making the judgment well before you have even looked at the actual case.

Dr Morgan:

It says that only exceptionally will there be a prosecution, so it is not a total amnesty after the five years. But even having the presumption after a time period is, as far as I am aware, unique in English criminal law. When we are talking about tort law, which is much more my area, limitation periods are absolutely standard, but in criminal procedure it is much more exceptional. I think that is why this has received so much more attention, media attention and public criticism than the civil law proposals.

Professor Ekins:

As Jonathan Morgan says, there are precedents elsewhere for statutes of limitation in the criminal sphere in other jurisdictions, but they have not been a feature of English law, although, of course, this is quite a soft statute of limitations in so far as it provides no obstacle or bar to prosecutions after the five years. It certainly does not stop investigations. In fact, if one were to make a criticism of the Bill, one might say that it places no obstacle on continuing investigations, which might be thought to be one of the main mischiefs motivating of the Bill. If there has been no investigation, the fact that there is an investigation, and cogent evidence arises of a crime, will tend to beat back the presumption against prosecution, if one wants to call it the presumption against prosecution. So it is not quite right to my mind to say this is putting the cart before the horse and deciding against prosecution before one investigates.

In relation to the Attorney General and consent to prosecute, there are two stages. One is the prosecuting authority deciding whether or not the prosecution is warranted, and the Bill looks at some of the factors that should be taken into account in making that decision. That might be one way to think about part 1 of the Bill—it is framing the determination by the prosecuting authority. In addition to that, the Attorney General’s consent is required. They are not necessarily the same stage or the same act.

As to whether the Attorney General giving or withholding consent—more likely the withholding, although I suppose either—will be challenged in the courts, I think, very likely, yes. How much risk is there? I think that is an open question. I think there must be some risk that there will be a Human Rights Act challenge arguing for a narrow and restrictive reading of the Attorney General’s power to give or withhold consent, and that might end up requiring the Attorney General to give consent in circumstances where one might not otherwise expect it. It is possible the courts will not take that course, but I think it is a risk that parliamentarians should be aware of.

John Larkin:

Yes. I am in agreement with Professor Ekins. Classically, the decision of an Attorney General to give consent to prosecution has been subject to very light-touch review. Here, although it is described in the clause heading as “Presumption against prosecution”, it is really more the establishment of an exceptionality test, and that of course gives a handle to anybody seeking to challenge the Attorney General, because what is or is not exceptional will be a matter ultimately for judicial determination. I think that challenges are almost inevitable, but they are by no means to be regarded as inevitably successful. I think the approach of the courts—one can see that in the Supreme Court challenge a year or so back to the certification by the Director of Public Prosecutions for Northern Ireland in the Dennis Hutchings case—tends to be associated with the bestowal of a good deal of latitude to the responsible law officer.

Q Can I follow up one last point? Dr Morgan has already answered it, but I would be interested to know what you two think. The presumption at the outset that you are not going to prosecute—is that a unique situation or is it something that is covered in other, similar types of cases?

John Larkin:

The law is full of operative presumptions, from time to time, but the precise model here is something that I have not seen either in the UK or elsewhere.

Professor Ekins:

I do not think the UK has tended to legislate about the decision to prosecute. There are a great many statutory requirements for Attorney General’s consent before prosecuting, so that is by no means unique, but the legislating to frame the prosecutor’s decision as to whether to initiate the prosecution is unusual.

Q The difference here is that this will actually be on the face of the Bill, in the sense that, at the beginning, the presumption will be not to prosecute. Putting the time limits aside, this is a major change. I wanted to know whether there are any other precedents in other pieces of law in the UK or other types of jurisdictions.

Professor Ekins:

Not to my knowledge, but it is difficult to sever it from the point about time. There is a difference between a Bill that does what you see in part 1 from day one and a Bill that does so after a certain period of time has passed, which is why the Bill refers, understandably, to the importance of finality if you have an investigation and further evidence has arisen. Those are all considerations that a prosecutor might well take into account anyway; it is just that Parliament is requiring them to be taken into account, framing when and how—[Inaudible.]

It is slightly different from that, I would argue, because it is presuming that you will not prosecute at the outset, which I think is difficult. Thank you very much.

Do you think the Bill will have a positive impact and protect armed forces personnel who serve on overseas operations? I will ask Mr Larkin first.Q

John Larkin:

I possess no qualifications to judge the reputational effectiveness of the Bill and its impact on military operations. What I have said to Policy Exchange is that many of the criticisms of the Bill are quite misplaced. It is not a blanket amnesty; in fact, it might be regarded as a fairly modest, proportionate measure.

Mr Ekins?

Professor Ekins:

I suppose the best case one can make for the positive benefit of the Bill is that it may provide some assurance to personnel. If no application has been made after five years, they are unlikely to be prosecuted. However, in one sense that is too strong, because if cogent evidence arises, it can be investigated. It probably will be—there is no bar to it in the Bill—and it may well result in a decision to prosecute.

Having said that, prosecution is the major risk for people who have been serving on operations abroad. It is a major problem in relation to Northern Ireland—we have been getting prosecutions 40 or 50 years after the fact, which are very difficult to conduct fairly, and which understandably cause an enormous amount of stress. In recent years, the problem in relation to people who have been serving abroad has been, in a sense, a seemingly never-ending cycle of investigation and reinvestigation. The Bill does not really do anything about that, so in that sense it will not provide much help.

I should have referred to as “professor”—sorry, I did not want you to feel left out. Doctor Morgan?

Dr Morgan:

The answer is, up to a point. It really depends on what kind of allegations we want to defend service personnel against. In the Second Reading debate, there were many references to Phil Shiner—we can take him as shorthand for spurious claims being brought. But you might say that if spurious claims are brought within six years, if it is a tort action, or within five years, if it is leading to a criminal prosecution, the Bill is not doing anything about those. It is not doing anything about promptly brought spurious claims. Indeed, it seems to me that the Shiner claims were actually brought promptly. There were many problems with them—namely, that people were making up the evidence—but they were not being brought many years later.

The Bill addresses one particular problem: very old and stale allegations being revived after a long period, which are either brought as a tort damages claim—that is part 2 of the Bill—or lead to criminal prosecutions, which is part 1. It seems to me to be part of a solution to what is actually quite a big and complex problem with a number of different strands in it. It is not the total solution, but it addresses that aspect of it.

Q Mr Larkin, you did touch on it, but do any of you believe that the Bill provides a blanket amnesty in any way, shape or form for armed forces personnel?

John Larkin:

I have given my view on that. The short answer is that it does not.

Professor Ekins:

I agree with John.

Dr Morgan:

I think “blanket amnesty” is a very overblown way of putting it, if we are talking of criminal prosecutions after the five years. It is establishing presumption, and that is what should be referred to. Having said that, the stronger the presumption is against prosecution, the closer it approaches that. The weaker the presumption is, the less protection it gives to the service personnel in question. So there is obviously a balancing act, but, as it stands, I do not see it as an amnesty; that is a misdescription.

If the Bill’s intent is to protect service personnel, what steps should be taken to improve the Bill as drafted?Q

Professor Ekins:

To my mind, the major problem of the Bill—this is a major absence, but it would be quite a substantial policy change to introduce it—is that it does not really address the extraterritorial application of the Human Rights Act. That is the main driver behind some of the difficulties we have seen in the last 10 or more years in a whole range of ways. That includes requiring continued investigation and litigation—sometimes from enemy combatants relying on the Human Rights Act while UK forces have been in the field. The Bill could be improved—although, as I say, it would be a major change—by limiting the extraterritorial application of the Human Rights Act.

That would be, in a sense, restating the position that our senior judges understood before the European Court of Human Rights extended how jurisdiction was understood. I think that would also be much more consistent with the way in which Parliament understood the Human Rights Act when it was enacted in 1998. The ECHR and the Human Rights Act really have been extended by a series of problematic judgments, and a Bill on this subject could usefully roll that back. That might mean that the Human Rights Act simply applies in the United Kingdom, or alternatively—this may be more plausible as a prospect for enactment—it might allow for limited extraterritorial application, in the limited way that was understood to be possible in 2003 when the European Court of Human Rights gave a significant judgment on the point, as well as by the House of Lords and the Supreme Court in the years to follow. That would address the problem of being unable to stop investigations and being exposed to litigation that requires the continuation of investigations, when the Government think that that is unfair to the personnel. The Bill does not address that—save, perhaps, by encouraging Ministers to derogate from the ECHR.

John Larkin:

There is a lack conceptual clarity in part 1—[Inaudible.]

Mr Larkin, we are sorry but we are not hearing you very well. Do you want to try to speak a bit closer to your microphone?

John Larkin:

There is a lack of conceptual clarity in part 1 of the Bill with respect to the prosecutorial task. As the Committee will know, the prosecutor’s task breaks down into two parts. First, they ask themselves whether the evidential test is met. If it is, they consider whether a prosecution would be in the public interest. That is the approach taken in all three UK jurisdiction—[Inaudible.]

We are still struggling, I am afraid.

John Larkin:

Clause 1 of the Bill puts no time limit on assessment of the evidential test. But then, when one looks at clause 3, subsections (1) and (2) tend to reduce the person’s culpability. Culpability is at the core of criminal liability—it is synonymous with criminal liability. There may be value in amending the Bill to permit the prosecutor to take a global view.

The Public Prosecution Service for Northern Ireland, in its code for prosecutors, permits the public prosecutor to take a view based on the public interest test, sometimes—exceptionally—in advance of full consideration of the evidential tests, so if one has a sense from the beginning that the case is going nowhere, one should not have to go through what might seem to be a very empty exercise of none the less carrying out the evidential test in full. There could be an expressed power, by amendment, given to prosecutors to determine in advance of consideration of the full evidential tests. As you rightly note, clause 3(1) sits ill with clause 1’s exception of the evidential consideration.

Q Can the witness write to us with his answer to that? It was not entirely audible to us here in the room.

Are you happy to do that, Mr Larkin? We did not hear all of what you said. Members may have got the general thrust of what you were saying, but we did not get the detail.

John Larkin:

I am happy to do that. It is a technical point, so it might be of assistance to Committee members if it were reduced to writing.

Thank you for that.

Q Thank you, Mr Larkin. I will ask the same question to Dr Morgan.

Dr Morgan:

I would approach the question in two ways. One would be, “How would I improve this Bill?” and the other would be, “What would I do if I was starting with a blank sheet of paper?” You would get two quite different answers, but I will start with the second one.

Let us have both approaches.

Dr Morgan:

Okay. To start with the second one, it seems to me that the problem in this area is lawfare or the judicialisation of war—whatever you want to call it. The extension of the European convention on human rights into this area as a result of the European Court’s decision in Al-Skeini, and the decision of our Supreme Court in Smith v. Ministry of Defence, which confirmed that and extended the law of tort into the battlefield, led to the erosion of combat immunity. To me, that should be the priority for any legislation on this difficult and multifaceted problem.

The section of the Bill that partly deals with the issue is the derogation provision and the duty on the Minister to consider derogation. It is not a duty to derogate; it is a duty to consider doing it, which is putting into statute the Government’s policy. It seems to me that that is valuable, although it does not change very much.

In its consultation paper published in June 2019, the Ministry of Defence said it was going to look at restatement of combat immunity, hand in hand with a no-fault compensation scheme for service personnel to pay damages on the full tort measure. Those two things should go together. I regret that last month, in reply to the consultation, it said that legislation on the issue is

“not being taken forward…at this time.”

I think it should be. The priority should be to restate combat immunity and, hand in hand with that, to have no-fault compensation for service personnel on the full compensation measure that you get if you bring a claim in law.

If that were done, it would help with the problem about the shorter limitation periods for tort claims—damages claims—that was raised several times at Second Reading. The British Legion has been quoted several times saying that that breaches the armed forces covenant. I do not want to get into that particular debate, but there is no question that service personnel might, in some fairly unusual situations, find their ability to bring damages claims caught by the proposals in part 2 of the Bill as it stands.

If the Ministry of Defence took forward the proposal that it called “Better combat compensation,” to have full compensation through the armed forces compensation scheme, those worries would fall away. If there was full compensation available without the need to bring a tort claim or negligence action against the Government, any limitations on the time periods for bringing tort claims would be an irrelevant question for service personnel.

Those are two reasons why I would revive what seems to have been the Ministry of Defence’s approach at one point, which was restating combat immunity and ensuring full, no-fault compensation. If you want me to give more detailed comments on the provisions of the Bill I can do that, but I would approach the issues in a quite different way than in the Bill that we have.

Q In the case of no-fault compensation, would that then be within the existing armed forces compensation scheme? How would you change that?

Dr Morgan:

The proposal to make that switch is in the joint paper produced by Richard Ekins, Tom Tugendhat and myself that I mentioned at the start. We said in that paper that that there is a case for having a more generous strand within the armed forces compensation scheme applying to those soldiers who cannot bring tort claims at law. In other words, if Crown immunity in warfare were to be revived—the Government already have the statutory power to do that, they do not need an Act of Parliament—and it was decided that you cannot bring claims at all, there would be a case for having a more generous approach within the armed forces compensation scheme to those people. I would not necessarily say the whole armed forces compensation scheme should be upgraded—I am aware of how expensive that would be. If we are going to restrict tort claims of a certain sub-category of injuries to service people, then it would be a good idea to balance that out by having full compensation.

Q When I was a Minister, I extended the issues around mental health in 2009, I think it was. You would not have to have a limitation time and it would be automatic for that person to be considered, is that right?

Dr Morgan:

Yes. I confess that I have not looked at the limitation rules of the armed forces compensation scheme. It certainly does ensure cover.

Q Would it extend to, for example, mental health grounds? The original 2000 Act was quite limited in terms of date of knowledge and other things around mental health. The Lord Boyce review was implemented in 2009. So what you are saying is that the presumption that there be no fault, basically, is accepted. That would perhaps get round the time limitations altogether.

Dr Morgan:

It also gets away from what we see in Smith v. Ministry of Defence: the allegation that the Land Rovers were not the right ones. Once you go to court investigating that in a negligence claim, it is getting into areas that should not be dealt with by a court in a negligence claim, it seems to me. If you are going to stop people from bringing such claims, you had better give them at least as good a compensation scheme without them needing to prove fault. That was our argument in the paper five years ago.

This morning we heard from Major Bob Campbell who talked about the MOD—in a brilliant quote to get on the record—“fannying about with repeated investigations”. He talked about 17 years of this carry-on. What part of the Bill do you see addressing the MOD’s failures in terms of these repeated investigations?Q

Dr Morgan:

I was going to comment on Major Campbell; I read about him in the newspaper on Saturday. It seems to me that his case would not have been addressed by these proposals. He was prosecuted in 2006 about an alleged offence in 2003, so that would have been within the five-year period for bringing the prosecution. It is only in 2020, after 17 years, that he has finally been cleared. The point was made in the Second Reading debate by a number of Members that perhaps the real vice is not so much very late prosecutions but the continued investigations by the Ministry of Defence without necessarily leading to a criminal prosecution at all. If I have understood the facts of Major Campbell’s case, it rather shows how a five-year soft cut-off for prosecutions is not going to solve that kind of problem at all.

Q Would you support calls for some sort of independence in the investigative processes?

Dr Morgan:

There is a rule in criminal law that if you have been tried in a criminal court for an offence and you are either acquitted or convicted, you cannot be tried again. That is double jeopardy. What I do not understand is why the double jeopardy rule is not applying, by analogy, to these repeated investigations within the Ministry of Defence. That needs to be urgently addressed, and it is not within the Bill. Maybe the Bill cannot do everything, but the Campbell case shows that there is a gap.

Q Would it make sense for that type of legislation on the way investigations are carried out to be developed alongside the Bill?

Dr Morgan:

Yes. Whether this needs fresh legislation or whether it can simply be done by changing the rules, I do not know. I know what Professor Ekins will say, which is that because the Human Rights Act requires investigations into deaths, we are currently limited in what we can do. Perhaps he will comment on that.

Professor Ekins:

I am sure the Ministry of Defence has had many failings across the years, but in one sense it needs to keep investigations going and to be open and avoid plodding along. It has done a lot under the threat of litigation—sorry, the reality of litigation—where it is exposed to a duty to investigate in accordance with changing standards over time. Something similar has happened in Northern Ireland, which John Larkin knows much more about than I do. It has been a particular feature of the legacy and the legal cases around Afghanistan. Those conflicts were fought on a pretty sound legal position and on the understanding that the European convention did not apply. The ordinary rules of the law around conflict and service law applied, yet subsequent decisions about investigation or not investigating have been challenged in the domestic courts by way of the Human Rights Act. I cannot see how we deal with that prospect recurring over time without addressing the territorial reach of the Human Rights Act.

The Bill deals with the issue incidentally and in part in so far as derogation, if there is derogation, in advance of future conflicts might help, and in so far as there are time limits on Human Rights Act applications or proceedings. That might deal with some of the risk of historical allegations being made and investigations rolling on. In terms of the problem of people being investigated repeatedly and a prosecution never being mounted, that is not a problem the Bill deals with directly, although I think it probably is the main mischief.

John Larkin:

I agree with Professor Ekins that the Bill is somewhat silent on the duration and repetition of investigations. In some cases, that leads to real mischief. It is not much fun for anyone to be finally vindicated after 10 or 12 years have elapsed. They would much rather be vindicated promptly—this applies both in terms of ordinary criminal civil justice as well as in the issue of service personnel—after a thorough and expeditious investigation.

Q Finally, having heard what the three of you have said about how we carry out investigations, do you understand that some people would have concerns that the Bill will not solve the issues of people like Major Campbell and the difficulties that he has had over the past 17 years?

Dr Morgan:

It is the point I made, so I agree that it will not solve all of the problems as it stands.

Professor Ekins:

Yes, it is a real concern.

John Larkin:

I think it is wrong to see a so-called independent investigation as the answer. The issue is not the independence or otherwise of the investigation. In fact, investigations are substantially independent at present. The issue is efficiency and the fairness of what is investigated.

I have two questions on the point raised earlier about the territorial reach of the Human Rights Act. How would you limit that within the Bill? What would you suggest?Q

Who are you addressing the question to?

I would welcome feedback from each of the witnesses. How would you limit the territorial reach of the Human Rights Act within this legislation? You mentioned it as a point, and I wanted to hear how you would do that.

Dr Morgan:

The Human Rights Act would have to be amended to say that the Act itself did not apply extraterritorially. Parliament could do that; what Parliament cannot do is of itself reverse the decision of the European Court of Human Rights. The nearest thing to do is for the Government to derogate using the process in the European convention. Those powers are already there in the Human Rights Act.

Q My question in response to that would be, why are we confusing the two things? The European Court of Justice ruled that it had supremacy over the ruling of the ECHR, and we opted out of the Lisbon treaty in terms of the acceptance of certain aspects of the Home Office and Justice type of rules—we opted out of that. Within the EU structure, they sort of opted out of accepting the ECHR in terms of jurisdiction within their own court systems. I feel that there is a bit of muddying of the waters in terms of what exactly is the jurisdiction of what. Could there be a review of that?

Dr Morgan:

In my view, this is nothing to do with the European Union. This is purely a European convention matter, so Brexit, thankfully, is out of the picture on this particular issue. It is purely a decision of the European Court of Human Rights in Strasbourg, which extended the extraterritorial reach of the convention in the Al-Skeini case.

There are two things that one could do about it. One is to derogate in future conflicts, which the Government have said they will consider doing. Another thing is for the Government vigorously to fight cases, such as Hassan v. United Kingdom, where the Government rather successfully argued that the European convention should be interpreted in line with the law of armed conflict or international humanitarian law.

Those are two things that one could do. A third thing, which would require fresh primary legislation, would be to amend the Human Rights Act so that domestic UK courts may only hear claims relating to things that happen within the territory of the UK. That will not stop the Strasbourg Court from hearing claims against the UK. Parliament cannot unilaterally change the meaning of the European convention on human rights, but it can change the meaning of the Human Rights Act. Richard Ekins is more expert than I, so I would like him to answer.

Q It just gives me pause for thought about why we have decided to do it, when the Court of Justice held that the EU could not accept the ECHR under the draft agreement and held that the agreement was incompatible with the TEU article 6.2, for the reason that the draft agreement undermined the Court of Justice’s autonomy. It allowed for the dispute resolution mechanisms. I am just curious why we have gone down this road. Perhaps the witnesses can clarify.

John Larkin:

May I come in on that point? The Member is referring, I think, to decision 2/15 of the Court of Justice of the European Union—[Inaudible.]—incompatible with the European treaty. Many of us smiled at that decision, because it showed the Court of Justice of the European Union was not particularly enthusiastic about being subject to the jurisdiction of the Strasbourg Court—[Inaudible.]—

Were you able to hear that answer, Joy?

No.

When you write to us on the previous point, Mr Larkin, will you also set out your thoughts on the question that has just been asked? We come to you, Professor Ekins.

Professor Ekins:

It was a surprising decision of the Court of Justice of the European Union, holding that the EU was not really able to make a treaty commitment to join the ECHR. It shows that the EU legal order guards its legal autonomy jealously, but I do not think that it helps in this context.

In answer to the question about how one limits the territorial reach of the Human Rights Act, one thing would be to include a clause in the Bill that amends the Human Rights Act to specify its territorial reach. That could be the more limited reach of only applying in the United Kingdom, or it could effectively restate the position as it was held by the European courts in 2003 and accepted by our senior judges for many years thereafter, that the convention applies in the United Kingdom and in some very limited extraterritorial circumstances. I drafted a provision to that effect, if anyone is interested, in submissions to the Defence Committee and in other papers to the Policy Exchange. It is open to question, obviously, but it is certainly possible to frame a limitation in a clause that could be adopted in the Bill. It is not impossible; it depends on whether Parliament wishes to do so.

As Dr Morgan says, though, that would not change the UK’s position in relation to Strasbourg, the European Court of Human Rights. Derogation is an important addition to the meaning of the Human Rights Act. If you want to deal with the prospect of continuing litigation, investigations and reinvestigations, you have to address the scope of the Human Rights Act. The same thing is true in relation to Northern Ireland and those historic allegations as well. The intention is that that should be dealt with in a separate Bill.

Does any other Member wish to question the witnesses?

Yes, Mr Mundell.Q

Thank you for coming to this session. We referred to Major Bob Campbell previously, and I wanted to follow on from the point made by Carole Monaghan and the evidence given by Major Campbell. He said that he gave evidence after several years of being investigated and reinvestigated, and he wrote to the International Criminal Court to ask them to prosecute him. The ICC actually refused that request. On Second Reading—I am sure you all witnessed the debate—a number of concerns were raised relating to veterans being hauled before the International Criminal Court as a result of the Bill being passed. Do you expect any veterans to be put before the International Criminal Court if the Bill goes ahead?

Dr Morgan:

There is a risk that it could happen. I have read the Government’s comments on this, and they point out that prosecutors will remain independent, that it is not an absolute bar, and that it is not an absolute amnesty. All of that is true; but if, in a particular case, a war crime is alleged against a person and it is after five years, and the prosecutor decides not to bring a case because it is not sufficiently exceptional, then in that situation there must be a risk either that the International Criminal Court would seize jurisdiction, or that another member state could apply for extradition of that veteran.

Professor Ekins:

I am not an expert on the International Criminal Court, but it is probably correct to stay that there is a risk. That said, prosecutors have a discretion as to whether to bring prosecutions even without the Bill. If a decision is taken not to prosecute in a particular case, then there is a risk that the ICC may take a different view. The ICC should not be taking over prosecutions if the UK—as I think it will even if the Bill were enacted—remains a country that does take its obligations seriously, that does investigate credible cases promptly and that does retain a system of deciding which cases to prosecute, rather than having a rule that they will all be prosecuted regardless of strength of evidence or other considerations such as the passage of time. There have, however, been types of cases in which the ICC has proved to be somewhat political in its decision making. It might turn on who the prosecutor is at the relevant time. It probably does increase the risk. If you ask me whether I expect there to be prosecutions before the ICC, I would say, “Not really,” but that is amateur speculation and not bankable.

John Larkin:

I think the risk is modest because, as the Committee knows, offences that are excepted from the reach of clause 1 include genocide, crimes against humanity and war crimes as defined in articles 6, 7 and 8 of the Rome statute respectively. Given that those are not subject to the five-year exceptionality rule, I think it is quite likely that those more serious offences would be prosecuted domestically, because they would benefit from the five-year exceptionality filter.

Q You said that there was an element of risk there, but when you look at what the International Criminal Court is prosecuting at the moment, and at cases it has done in the past, they generally relate to large-scale war crimes, genocide and that type of thing. Are we really suggesting that the International Criminal Court will get involved in cases that involve veterans? I have no option to expect the level of case, but are we expecting the International Criminal Court to get involved in, as Major Bob Campbell said, manslaughter and those types of incidents? Is that a realistic prospect?

Dr Morgan:

It would have to fall within the definition of war crimes, so one hopes that it is unthinkable that credible evidence of this would ever be laid but, if it were—this is a hypothetical situation—if such evidence existed, because it related to events a long time before, perhaps long before five years, and if the sole reason for not prosecuting was the change that the Bill is making, namely that it was after the five years, then the risk is there. It is probably quite small because, as you say, the kind of situation that will trigger the ICC jurisdiction we all hope would never happen anyway, but that does not mean it cannot.

Q Are they not looking at commanding officers, high-ranking soldiers, dictators and the higher level, rather than at the lower ranks as such?

Dr Morgan:

The only point that I would add is that the fact that what is being proposed is internationally unusual I think increases the risk. I probably agree with Mr Larkin that the risk is modest, but I think the fact that it is a five-year time period, which to my knowledge is not visible in any other signatory state of the ICC, increases the risk.

Professor Ekins:

The ICC should be focusing on allegations of atrocities, widespread wrongs and so on, rather than on what you might call manslaughter or questions of where the allegations are much more fine-grained, such as excessive force and so on, but there is a risk that the ICC does not always observe the limits that we apply in law to its jurisdiction. There have been instances of somewhat politically motivated decision making. There might still be a modest risk of the ICC going into the kinds of case that are likely to arrive at a place where a decision is made that it is not worth prosecuting because of particular circumstances, a lack of evidence and so on. The risk is probably quite—[Inaudible.] This will only arise if after five years a prosecutor decides that the public interest in prosecuting is not really there. I think it would only be possible for the ICC to justify intervention if there is a sufficiently strong case that would result in a conviction, and disagree about the public interest. That would sound like a surprising ground on which to debate a disagreement on whether a prosecution is warranted. I think it is possible but not very likely.

John Larkin:

My point is that genocide, war crimes and crimes against humanity are not subject to the five-year time limit, so if the evidence emerges at eight years, for example, the process envisaged by this Bill—exceptionality assessment—simply does not apply; it will be determined as if it had occurred last week. That is an important point that is lost in legal—[Inaudible]—the international—[Inaudible]—of the Bill, but it has not been sufficiently appreciated that part 2 of the statute of Rome makes an exception for genocide, war crimes and crimes against humanity. They will be prosecuted if the evidence exists domestically, and therefore the risk of a lance corporal being hauled in front of the International Criminal Court seems to me to be fairly minimal.

Q The Government have announced that they are going to bring similar legislation with reference to Northern Ireland, although the Northern Ireland situation would be retrospective. This is not retrospective; even though it is being pumped out in propaganda as being a thing that will protect all veterans from Iraq and Afghanistan, it clearly is not. If the Government are going to make the Northern Ireland one retrospective, is there not a case to be made for making these things retrospective?

Dr Morgan:

indicated assent.

I think you have to speak as an answer, Dr Morgan, because we cannot otherwise hear what it is.

Dr Morgan:

Retrospection is obviously going to add a further layer of controversy on top of this. The question really is whether it should apply to Iraq and Afghanistan after this lapse of time. If you believe that the Bill is the right solution to the problem, then it seems to me odd that that is not being proposed, but I am not convinced it is the right solution to the problem, so I am not going to argue for it to be retrospective.

Q No, I am not either; I just wanted to know what your views are. This Bill is being portrayed as if it will draw a line under Afghanistan and Iraq, which it clearly will not, as it is framed. If legislation is going to be brought forward on Northern Ireland, as we have been promised, that would have to be retrospective, because we are dealing in those cases with things that happened perhaps 40 years ago. I am playing devil’s advocate in saying that, if it is going to be retrospective for Northern Ireland, would it not be the obvious thing to do here to make this retrospective, to protect the veterans who served in Afghanistan and Iraq? I hasten to add that I will wait to see the legislation on Northern Ireland to make it retrospective and how that will be done.

Dr Morgan:

We have to wait and see what it says. It would be curious if the Northern Ireland situation and the Iraqi and Afghan situations were dealt with in a different way on that issue of retrospection, so I agree with your point.

Professor Ekins:

I would question the premise of the question, because as I read the Bill, it does apply to actions taken in the past. It will not foreclose prosecutions or proceedings already under way. It is a procedural change; if the Bill were enacted, say, tomorrow, a prosecution brought the day after that, more than five years after the events in question, would be subject to the regime in the Bill. I think it will apply to Iraq and Afghanistan, save insofar as there are prosecutions that have been initiated or proceedings that are under way. It will not apply to ongoing legal proceedings, but it will be a question sometimes, if I wanted to continue proceedings, where it might apply.

John Larkin:

The Bill is, as Professor Ekins has said, significantly retrospective. If one looks at clause 15(6), it says:

“None of the provisions of Part 1 applies to proceedings instituted before the day on which the provision comes into force.”

As [Inaudible.]—

Sorry, I think you were looking away from the microphone when you answered.

John Larkin:

Clause 15 makes it clear that the Bill does not apply where proceedings have begun or are under way before the day it comes into force, but if they are not under way—[Inaudible]—clearly defined rules can crystallise shortly thereafter, and—[Inaudible]—subject to the exceptionality—[Inaudible.]

I think we are going to ask for that answer in writing, as well. The Minister has a very quick question—

I am happy to pass on it; it has been answered by Dr Ekins.

Thank you very much indeed. If no one else has any further questions, we have reached the end of the time allocated. I thank each of the witnesses for their evidence and for being with us in the technical circumstances. Mr Larkin, I am very sorry that we were not able to hear some of your responses; if you are able to write to the Committee on the matters we have come back to you on, that would be very helpful indeed.

John Larkin:

I am happy to do that, Chair.