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Written evidence to the JCHR on derogating from the ECHR

30 March 2017

The Law Society submitted evidence to the Joint Committee on Human Rights (JCHR) on the Ministry of Defence's (MoD) proposals to derogate from the European Convention on Human Right (ECHR) in future cases of armed conflict. The government announced its intention to derogate from the ECHR before embarking on significant future military operations in a written ministerial statement by the secretary of state in 2016. They contended that litigation against British troops or the MoD risked 'seriously undermining the operational effectiveness of the armed forces.'

The Law Society does not believe that the government’s stated aim – reducing vexatious claims against soldiers – would be achieved by derogating from the ECHR. Other than in relation to 'lawful acts of war', the right to life cannot be derogated from. Freedom from torture, inhuman and degrading treatment are, in all cases, non-derogable. If a state is bound to investigate allegations of mistreatment or unlawful killing – the results of which might subsequently give rise to a civil claim – derogation from the convention could not prevent such investigations or claims. Many of the investigations into soldiers, and resultant civil claims, have related to allegations of mistreatment or unlawful killing.

Similarly, there is no clear evidence that the extra-territoriality of the ECHR undermines the operational effectiveness of the armed forces. Many of the decisions that have been subject to court cases have not been about combat, but rather procurement in peacetime or training conditions. No one has attributed blame to the frontline commanders in those cases - in fact the courts have been at pains not to do so.

Furthermore, it is far from certain that a future conflict such as the one in Iraq or Afghanistan would fall within the remit of Article 15. Until the precise circumstances of the derogation become clear, however, it is impossible to make a definitive judgment on this issue.

The MoD should be cautious when considering derogating from the ECHR. If the UK was to derogate from any future conflict as a matter of policy, simply to avoid legal costs and damages, this would set a damaging precedent for other European countries which might be involved in military operations abroad.

In its attempt to close out ‘vexatious claims’, the government’s approach would inevitably close the door on meritorious ones. Were such limitations on human rights to be imposed, British soldiers (and their families) would also be unable to hold the government to account should they suffer treatment that amounted to a violation of their human rights.