On Friday, the Joint Committee on Human Rights (JCHR) announced a new inquiry on the Government’s proposed derogation from the ECHR. The proposal was announced in October at the Conservative Party Conference: the Defence Secretary, Michael Fallon stated that “This is not about putting our armed forces above the law … Serious claims [against the army] must be investigated, but spurious claims will be stopped and our armed forces will now be able to do their job fighting the enemy and not the lawyers.”
No formal proposal has been made, but the intention appears to be to consider derogating from the right to life (Article 2 of the ECHR) and the right to liberty (Article 5) in respect of future conflicts. Derogation is a serious step: derogations are rare and must meet the strict criteria set out in Article 15 of the ECHR. Turkey has been heavily criticised for its attempts to derogate following the recent political disturbances.
Derogations are rare and must meet the strict criteria set out in Article 15 of the ECHR
On 13 October, Harriet Harman, the Chair of the JCHR, wrote to Michael Fallon seeking detailed information about the rationale for, and evidence in support of, the proposed derogation, including analysis of whether the criteria in Article 15 are met. The JCHR records Mr Fallon’s response, received on 22 November, as being that it would be hypothetical to debate these questions in advance of a concrete issue arising in particular circumstances. The purpose of the announcement at the party conference was, he said, “to make clear that we consider that it may well be right and proper to make use of the provision for derogation contained in Article 15 in future operations overseas.”
Not satisfied with this response, on 16 December the JCHR announced an inquiry into the proposed derogation, pointing out that such analysis should be carried out in advance of any particular conflict “to enable [the JCHR] to scrutinise the likely justification for such a derogation, and to enable it to respond swiftly in the event of such a derogation taking place”. This would enable it to provide Parliament with the detailed information it would need in order to scrutinise any proposed derogation.
The JCHR seeks written submissions of up to 3,000 words (which can be submitted here), by 31 March 2017, on the following questions:
- What evidence supports the Government’s view that “our legal system has been abused to level false charges against our troops on an industrial scale”?
- What evidence supports the Government’s view that the extra-territorial applicability of the ECHR undermines the operational effectiveness of the Armed Forces?
- Are the substantive requirements of Article 15 ECHR likely to be satisfied in the circumstances in which the Government intends to derogate?
- Are there alternatives to derogation which would achieve the Government’s objective of protecting the armed forces against unfounded legal claims?
- Are there any wider implications of the UK derogating from the extra-territorial application of the Convention in military operations, such as effects on other countries or on the European system for the collective enforcement of human rights?
- Should the derogating measures be contained in primary legislation?
- Is it appropriate for the Ministry of Defence to have lead responsibility for a policy the purpose of which is to protect the MoD from legal claims?
This is an important set of questions (the last of which only needs to be stated in order to make clear the answer, one would hope).
The UK fought hard against the proposition that the ECHR applied at all to overseas military operations: a battle which it lost in Strasbourg in a number of cases, including Al-Skeini v United Kingdom (App. No. 55721/07). The 2011 decision of the Strasbourg Grand Chamber includes the magnificent concurring opinion of Judge Rozakis, who was clearly unimpressed by the UK’s argument that, among other undesirable consequences, extending Convention protection to the scope of UK military operations would leave the UK open to charges of “human rights imperialism”:
It ill behoves a State that imposed its military imperialism over another sovereign State without the frailest imprimatur from the international community, to resent the charge of having exported human rights imperialism to the vanquished enemy. It is like wearing with conceit your badge of international law banditry, but then recoiling in shock at being suspected of human rights promotion.
Personally, I would have respected better these virginal blushes of some statesmen had they worn them the other way round. Being bountiful with military imperialism but bashful of the stigma of human rights imperialism, sounds to me like not resisting sufficiently the urge to frequent the lower neighbourhoods of political inconstancy. For my part, I believe that those who export war ought to see to the parallel export of guarantees against the atrocities of war. [Paras. 37-38]
The Government’s current arguments in favour of derogation do not even have this veneer of principle. Derogating from the Convention rights in order to protect against civil claims by those affected achieves that aim by removing those rights entirely from everybody in the area of conflict (soldiers too, it should be remembered, who have been held to have certain Convention rights when deployed overseas).
It is therefore difficult to make sense of Mr Fallon’s statement that “serious claims” will still be investigated while “spurious claims” will be stopped. If the rights to life and liberty are suspended for a particular military operation then nobody within the scope of that operation has those rights, and no claim, however serious and well-founded, can be brought. Derogation is a blunt instrument which does not distinguish between well-founded claims and “spurious” ones.
The Government appears to be using the spectre of unmeritorious civil claims to achieve something which, as Al-Skeini shows, it has been trying to do for years: to export war without guaranteeing against the atrocities of war. It is heartening that the JCHR has moved so quickly to investigate the legal and factual basis for derogation.