Dr Julian Lewis: I greatly admire and respect the hon. and gallant Member for Barnsley Central (Dan Jarvis), but I fear that it would require rather more than just an improvement to the way in which Service authorities investigate allegations to solve this problem, because the problem derives in large part from the application of the Human Rights Act abroad.
The purpose of this Bill should not be to stop sound cases being prosecuted, and it does not do so. Its purpose should be to stop unsound cases being repeatedly investigated, and that, I fear, it fails to do. The hon. Member for Brighton, Kemptown (Lloyd Russell-Moyle) seized on this point in his earlier intervention, in which he referred to intimidation by reinvestigation, and he is right; that is the nub of the problem. The Secretary of State conceded that only a small proportion of these many cases – most of them spurious – end up in a prosecution. He suggested that, if it were known that there would be less likelihood of a prosecution, there might be fewer rounds of investigation and reinvestigation, but I am afraid I do not find that wholly or, indeed, at all convincing. Something must be done to stop the repeated reinvestigations, which, in large part, happen because of the application of the Human Rights Act abroad.
I first became aware of the scale of this problem several years ago when I heard speeches from my hon. and gallant Friends the Members for Beckenham (Bob Stewart) and for Filton and Bradley Stoke (Jack Lopresti). The effect of that was to interest me in trying to take the matter further during the two periods for which I chaired the Defence Committee. In those two periods, we produced three reports. The first inquiry was carried out by the sub-Committee under the chairmanship of my hon. Friend the Member for Plymouth, Moor View (Johnny Mercer), now the Minister for Defence People and Veterans. That inquiry dealt with Iraq and reported in February 2017. The second one dealt with Northern Ireland and reported in April 2017.
The third one, dealing with the whole panorama of all these scenarios, reported in July 2019. That report warned that the European Court of Human Rights
“has gone far beyond the original understanding of the European Convention on Human Rights, and … its rulings have stretched the temporal and territorial scope of the Human Rights Act beyond Parliament’s original intentions”.
The report examined proposals by Professor Richard Ekins, now professor of law and constitutional government at Oxford University, in which he proposed to restore the former scope of the HRA and the application of the ECHR. As long as that legislation, which was never intended to be applied abroad when it was enacted by this House in 1998, persists in its extended application, we will not solve this problem.
Tom Tugendhat: Is my right hon. Friend aware that it is not only the United Kingdom facing an issue with the extraterritoriality of the ECHR? The French Conseil d’État – in which I must declare an interest, as my wife is a member – has also been investigating this, as has the German court, because this extraterritoriality was never envisioned by the signatories in the ’50s, nor was it envisioned by the then Prime Minister in the ’90s.
Dr Lewis: I absolutely accept that this is not a problem confined to us. It is something that has crept into the international scene. Law-observing democracies are finding themselves hamstrung because of the misapplication of what is essentially civil law to the battlefield. That is wrong. It was never intended to be the case, and until it is put right, we will not solve this problem.
It is true that the Government, in this Bill, are considering derogating from the ECHR; clause 12 encourages, but does not require, such derogations. That would help, but according to Professor Ekins, whose work with Policy Exchange I acknowledge, that would be no substitute for amending the Human Rights Act and providing that it should not apply outside the UK, or at least that it should apply only in strictly limited circumstances. Parliament should go back to what it intended in 1998. It would also be much better for Parliament to require the Government to derogate in relation to overseas operations and to amend the Human Rights Act so that it does not apply abroad.
With good will on both sides, the Bill can be improved, and I urge those on both Front Benches to work together in pursuit of an improved outcome.