With tensions rising globally in light of a suspected chemical attack in Syria and the UK being called upon to intervene in the Middle East, it seems that the time is ripe to take stock of the UK’s approach to derogation from the European Convention on Human Rights (ECHR) in situations of armed conflict. This post summarises developments in UK policy relating to derogation and provides an overview of commentary on proposals to derogate.
In October 2016, the UK Government announced a proposal for a “presumption to derogate” from the ECHR in future armed conflicts. The stated justification for the proposal was to “put an end to the industry of vexatious claims that has pursued those who served in previous conflicts”. In December 2016, the Joint Committee on Human Rights (JCHR) launched an inquiry into the proposal.
The JCHR inquiry attracted many high-quality submissions from scholars and interested groups. However, the inquiry was cut short by the announcement of a snap general election in June 2017. This meant that the JCHR did not have opportunity to report on the proposal. It did, however, publish the submissions received on its website.
The submissions set out a range of viewpoints on the proposal for derogation from the ECHR and can usefully inform further debate on the reach of ECHR obligations and the appropriate role of derogation in situations of conflict and emergency.
Derogation from the ECHR
Article 15 ECHR affords states a power to derogate from certain Convention obligations “in time of war or other public emergency threatening the life of the nation”. The effect of Article 15 ECHR is to suspend certain Convention obligations, so that states may take measures which would otherwise breach human rights. The power is subject to three key limitations.
the inquiry was cut short by the announcement of a snap general election
First, states may only take measures derogating from ECHR to the extent “strictly required by the exigencies of the situation” (Article 15(1) ECHR). This restricts derogation measures to what is necessary and ensures that derogation measures are accompanied by supervision of the European Court of Human Rights (ECtHR), which can determine whether purported derogation measures exceed what is strictly required (see e.g. Ireland v UK (1979-80) 2 EHRR 25 ).
Second, only certain Convention rights are derogable and states may not derogate from non-derogable rights. These include the right to life (except for deaths resulting from lawful acts of war), freedom from torture and freedom from slavery (Article 15(2) ECHR). Third, derogating measures must be consistent with a State’s other obligations under international law (Article 15(1) ECHR).
These principles are relatively settled. But since the exercise of the power of derogation may have severe consequences for human rights, the question of when that power should be exercised attracts some controversy.
Submissions to the JCHR Inquiry
Many of the submissions to the JCHR were aligned in the view that the proposal could not hope to achieve the government’s stated aim, namely reducing vexatious claims against soldiers. On the broader question of whether there should be a presumption of derogation in future armed conflicts, a range of views was exhibited.
A number of groups were wary of a presumption to derogate from the Convention
A number of groups were wary of a presumption to derogate from the Convention in future armed conflicts. Liberty, for example, stated that the Ministry of Defence’s position was a “self-serving attempt to insulate its decisions from legal scrutiny”. Liberty’s submission highlighted what is at stake where States purport to derogate from the Convention: “The application of human rights to armed conflict helps ensure that the rule of law is not silenced by the clash of arms… Over-hasty or presumed derogations, however, would undermine all these important safeguards”. Drawing on the UK’s experience with derogations post-9/11, the Bingham Centre for the Rule of Law called for “sufficient time for Parliamentary scrutiny of the proposed derogation”.
At the other end of the spectrum, the Policy Exchange’s Judicial Power Project backed the proposal for a presumption to derogate from the ECHR in armed conflicts. This built upon its 2015 research paper Clearing the Fog of Law, which expressed concern about “judicialisation” of warfare. The group is particularly critical of domestic and ECtHR jurisprudence recognising that ECHR jurisdiction may extend extraterritorially in armed conflicts, such as Al-Skeini v UK (2011) 53 EHRR 18 and Smith v Ministry of Defence  UKSC 41;  AC 52.
I assisted with preparation of a submission from Oxford Pro Bono Publico (OPBP), a postgraduate student public interest law group overseen by the Faculty of Law at the University of Oxford. OPBP’s submission provided a comparative perspective on the proposal, concluding that the rules of civil procedure in many jurisdictions provide sufficient tools to deal with unfounded claims, such that derogation would not be strictly required to protect troops from vexatious litigation.
Individual contributions were also received from a number of eminent scholars with expertise in this area. Many of these similarly considered that derogation would be an ineffective means of reducing vexatious claims against the Armed Forces, but recognised a role for derogation in circumstances of genuine necessity. Professor Fiona De Londras, for example, stated that “derogation does not prevent legal complaints; it simply means that such complaints are assessed against a different benchmark”, allowing account to be taken of operational considerations. Dr Marko Milanovic explained that in his view, although the extraterritorial application of the ECHR raises “significant and difficult questions of fit and practicality”, it is “only right and proper”, and derogations are “desirable – up to a point – in order to reduce these difficulties”.
Closure of the Inquiry
Submissions were accepted until 31 March 2017. However, in April 2017, Prime Minister Theresa May called a snap general election in an attempt to increase the Conservative party’s parliamentary majority and “strengthen [her] hand in [the forthcoming Brexit] negotiations”. The election was held on 8 June 2017. Following the dissolution of Parliament, the JCHR closed its inquiry.
it is important that we continue to deliberate and debate the role of derogation in times of conflict
Despite the premature conclusion of the JCHR inquiry, it is important that we continue to deliberate and debate the role of derogation in times of conflict. The topic remains particularly pertinent while the courts continue to grapple with the thorny issue of the relationship between the ECHR and other norms of international law regulating armed conflict, such as international humanitarian law and UN Security Council Resolutions (see for example Hassan v UK 38 BHRC 358 and Al-Waheed v Ministry of Defence  UKSC 2;  AC 821).
The submissions to the JCHR inquiry provide insight and commentary on derogation which can usefully inform such ongoing debate. Governments and Parliaments come and go. But questions over the mechanisms for the attainment (or otherwise) of human rights obligations, particularly in times of conflict and crisis, are perennially important. The likelihood of the UK’s becoming involved, in some form or another, in future armed conflict warrants continued scrutiny of proposals to derogate from the ECHR.
Natasha Holcroft-Emmess is a trainee barrister at Matrix Chambers.