A recent paper published by Policy Exchange, Resisting the Judicialisation of War, sets out a range of policy and legislative proposals for the incoming UK government. In this blog post, I raise concerns over three recommendations in the paper.
Contextualising the proposals
In the background to the Policy Exchange paper is the Ministry of Defence (MOD)’s 2016 announcement of a “presumption to derogate” from the European Convention on Human Rights (ECHR), particularly in “future overseas operations”. Derogation is the mechanism built into the ECHR to provide flexibility in times of war or emergency. It enables States to modulate the scope of Convention obligations and take measures consistent with the Law of Armed Conflict (if applicable).
The MOD’s 2016 press release asserted that litigation followed military operations in Iraq and Afghanistan on “an industrial scale”, and that derogation would protect troops from persistent “vexatious claims”. Previous Policy Exchange reports, Fog of Law (2013), Clearing the Fog of Law (2015) and Protecting Those Who Serve (2019), placed the blame for such claims squarely on judicial decisions applying the ECHR to extraterritorial armed conflicts, including Al-Skeini v UK (2011) 53 EHRR 18 and Smith v MOD  UKSC 41.
This resulted in what Policy Exchange calls the ‘judicialisation’ of war. The application of the ECHR to military operations is alleged to hinder commanders by generating risk aversion, leading to the hyperbolic claim that the military risks “defeat by judicial diktat”. The recent paper is the latest instalment in Policy Exchange’s coordinated efforts to sway UK policy in this area.
Derogation is the proposed workaround. When the derogation presumption was first proposed, criticisms were levelled against the rhetoric surrounding its announcement and questions were asked about the rationale underlying the policy. In his contemporaneous EJIL: Talk! post, Milanovic noted that no empirical analysis had been undertaken to prove the existence of the alleged “industry of vexatious claims”. He also criticised the ostensible justification that derogation would protect individual troops from suit, not least because ECHR duties (and, by extension, the benefits of derogation) pertain to States rather than individuals, and because certain issues, such as torture and inhuman treatment, concern ECHR provisions from which no derogation is permissible.
The presumption of derogation became the subject of a Joint Committee on Human Rights (JCHR) inquiry, which was unfortunately cut short due to the 2017 general election. Leading scholars considered the policy’s compatibility with the ECHR’s derogation provision, Article 15. One question raised was whether it is possible for States to derogate when they act outside their own territory.
Both the MOD announcement and the Policy Exchange paper assume that extraterritorial derogation is possible, but as yet, no State has derogated from the ECHR while acting abroad. Although some judicial dicta have suggested that extraterritorial derogation may be problematic due to the ‘threat to the life of the nation’ requirement in Article 15, the European Court of Human Rights (ECtHR) seems open to the idea in principle. In Bankovic v Belgium (2007) 44 EHRR SE5  and Hassan v UK  38 BHRC 358 , , the ECtHR noted that States tended not to derogate when acting extraterritorially. References to State practice on the choice not to derogate imply that the Court considers extraterritorial derogation possible.
Several commentators have argued that extraterritorial derogation should be possible. Various rationales have been advanced; arguments include that the ‘threat to the life of the nation’ requirement in Article 15 ECHR could be interpreted to refer to the nation where the derogating State acts. See, for example: Krieger (2011) 50 Mil L & L War Rev 419, 436; Milanovic in Bhuta (ed.) The Frontiers of Human Rights, p. 71; and Dr Stuart Wallace’s submission to the JCHR inquiry . The balance of academic opinion appears to consider extraterritorial derogation possible.
The Policy Exchange paper takes the derogation presumption as a reference, but quickly moves beyond it to advocate more dubious propositions.
Responding to the paper’s proposals
In the following sections, I critically assess three proposals in the Policy Exchange paper. But first, I want to highlight the paper’s superficial nature.
It is a sparse document, considerably scantier than Policy Exchange’s previous reports. Excluding title pages, forward and author profiles, less than four pages of not-quite A4 are devoted to substance. Recommendations are made in 17 bullet points and the remaining text constitutes less than one full A4 page. There is scant argumentation to justify the bold proposals discussed below.
Although I agree with the authors of the paper that it is important for the Armed Forces to be able to respond effectively to military needs, and I agree that derogation can be a sensible way to achieve that, I part company with them over the following recommendations:
- To place on a legislative footing a “policy requiring ministers to derogate” from the ECHR in military operations abroad;
- To introduce legislation preventing “domestic courts from quashing” purported derogations;
- To adopt a policy of so-called “principled non-compliance” with ECtHR judgments which affirm that the ECHR may apply to military action overseas.
Derogations must be fact-specific
The Policy Exchange paper recommends that the incoming UK government legislate to require ministers to derogate from the ECHR in future overseas military operations. This proposal is mirrored in Policy Exchange’s 2019 report.
The text of Article 15(1) ECHR permits derogation measures to the extent “strictly required by the exigencies of the situation”. This limiting provision reflects the fact that conflicts and emergencies do not continuously involve intense uses of force. Whether particular derogation measures are warranted calls for fact-specific assessment.
The MOD’s press release on the derogation presumption reflected this nuance, stating that derogations would only be made “if possible in the circumstances that exist at that time”. But that nuance is lost in the Policy Exchange recommendation. The authors suggest that derogation should be required automatically whenever the UK is involved in conflict abroad. They neglect to identify which Convention duties they anticipate the State suspending. It is revealing that earlier Policy Exchange documents have advocated a “blanket derogation” – a suggestion antithetical to the nuanced approach required under the ECHR.
There is no room in the approach advocated in the paper for ministers to weigh the need for derogation, taking into account the situation on the ground. Blanket and automatic derogations would be incompatible with Article 15 ECHR.
Domestic courts and the legality of purported derogation
The Policy Exchange paper recommends the introduction of legislation which would “prevent domestic courts from quashing a derogation”. This would presumably preclude domestic courts considering the legality of derogation orders made under section 14 of the Human Rights Act, to assess whether they meet the criteria in Article 15 ECHR. This occurred, for example, in A v Secretary of State for the Home Department  UKHL 56, when the House of Lords quashed a derogation order that discriminated against non-British nationals.
The proposal is both pernicious and pointless. It is pernicious as it undermines the ECHR system, which relies on both domestic and supranational courts. The ECtHR has consistently held that Convention safeguards must be interpreted in a way which makes them practical and effective (see e.g. Soering v UK (1989) 11 EHRR 439 ). One way of achieving that is enabling individuals to bring claims in domestic courts, which Parliament facilitated through the Human Rights Act. Removing Article 15 adjudication from the remit of national courts would be a retrogressive step in the protection of Convention safeguards.
The proposal is also pointless as it would not prevent people from taking claims to the ECtHR in Strasbourg. The right to do so under Articles 34 and 35 ECHR would be unaffected. Neither is this pointlessness benign: it would reintroduce the extra time and expense involved in taking a case to Strasbourg, burdens which the Human Rights Act removes by enabling individuals to bring claims in domestic courts.
Promoting non-compliance with ECtHR judgments
The Policy Exchange paper states that the next government should “adopt a policy of principled non-compliance with [ECtHR] judgments that purport to extend the ECHR to military action abroad” since “in extending the reach of European human rights law the Court has brazenly departed from the terms of the ECHR”.
Two points can be made. First, the ECtHR is the arbiter of the interpretation of the Convention (see Article 32 ECHR). Its interpretation of jurisdiction under Article 1 ECHR, including that it may, in some circumstances, apply when States participate in military operations abroad, has been subject to detailed consideration and ultimately reaffirmed in two Grand Chamber cases (Al-Skeini v UK - and Hassan v UK -).
Second, failure to comply with ECtHR judgments would put the UK in breach of its international law obligations. The proposal would so obviously undermine the ECHR system that it may be wondered why it is being suggested (I will return to this below).
So-called “principled non-compliance” is in fact not principled in any way. Cherry-picking which obligations to comply with is distinctly arbitrary. The paper attempts to justify the concept by alluding to the prisoner voting saga, when the UK struggled to address a blanket ban on prisoner voting that violated the right to vote (see Hirst v UK (No 2) (2006) 42 EHRR 41). But the analogy does not work.
The paper takes one former government’s objection to Hirst and elevates it to a novel doctrine. Moreover, following Hirst, various attempts were made by successive governments and Parliaments to work out how to implement the ECtHR’s judgment, with a solution eventually reached in 2017. The way the point is made in the paper obscures this. It leaves the impression of an obfuscatory attempt to make ignoring legal obligations seem standard practice.
Suggesting that the government should deliberately ignore ECtHR decisions also risks generating copycat arguments in other States. Would we be able to tell the difference when States such as Russia and Turkey, which frequently fail to implement ECtHR judgments, refuse to follow judgments “on principle”, rather than because they simply don’t like the outcome? If the UK adopted the approach advocated, it would set a dangerous precedent in States where the rule of law is less firmly entrenched.
Having considered these three issues, there is a wider point to note about the context in which the proposals have been made. The radical nature of these proposals, so clearly contrary to international law and the ECHR system, begs the question: why publish a document so brief containing such controversial propositions now? The answer may lie in the fact that the paper’s publication coincides with run-up to the UK general election on 12 December 2019.
Policy Exchange makes no bones about trying to influence the political agenda. The brevity of the piece resembles a briefing paper and it is short enough that it might actually be read by busy politicians or their aides. The authors may have hoped to prompt manifesto commitments and affect the post-election legislative programme. The proposal of options as perverse as ex ante non-compliance with judicial decisions gives the impression of overreaching, in the hope of clawing support for slightly more ‘moderate’ propositions.
If influencing manifesto commitments was the intention behind the paper, it is noteworthy that the Conservative Party’s 2019 manifesto includes a promise (p. 52) to “introduce new legislation to tackle the vexatious legal claims that undermine our Armed Forces”. This language is sufficiently vague that it could potentially capture some of Policy Exchange’s proposals. But notably, the manifesto does not explicitly endorse any of the specific proposals advocated by Policy Exchange. To that extent, the impact of the recent paper may have fallen short of its authors’ ambitions.
The manifesto also speaks of ‘updating’ (but not replacing) the Human Rights Act, ensuring that judicial review “is not abused to conduct politics by other means”, and setting up a Constitution, Democracy & Rights Commission to examine these issues in depth (p. 48). If there is to be such a constitutional shake-up, the proponents of the proposals addressed here may try to use that as a vehicle to bring about the changes they desire.
The Policy Exchange paper raises several issues. Space precludes detailed consideration of all of them here. I have chosen to comment on some of the more troubling recommendations and to situate them in context.
Although I agree that derogation can be a sensible way to provide flexibility in military operations, the paper’s recommendations go much further than the previous government’s announced policy. Mandatory derogation and the removal of domestic courts’ jurisdiction to consider derogations would undermine the ECHR system. Non-compliance with ECtHR judgments would put the UK in breach of its legal obligations. The suggestion is highly troubling. For the reasons given above, we should be dubious of these proposals.