UK to Derogate from the ECHR in Armed Conflict

At the Conservative party conference this week, the UK Prime Minister and her defence secretary announced that the UK will derogate from the European Convention on Human Rights in times of armed conflict. I have written before that such derogations – if appropriately used – can be a valuable tool in regulating the relationship between human rights law and international humanitarian law, by providing much needed clarity and flexibility. I hence have no problem with the principle of the idea – indeed, I have argued in particular that the dicta of some of the judges of UK’s highest courts to the effect that the ECHR cannot be derogated from extraterritorially are not to be followed. I do have a problem, however, with how this derogation idea is now being sold to the British public and for what purpose. In that regard, my comments in this post are caveated by the unfortunate fact that the specifics of the derogation plan are yet to be published – we know that there will be a ‘presumed’ derogation, but not from which rights and under what exact circumstances.

Let me first deal with the political salesmanship. To start with, there’s the usual (and forgivable) pandering – Theresa May thus opens her pitch by saying that “Our Armed Forces are the best in the world” and that her government “will ensure that our troops are recognised for the incredible job they do. Those who serve on the frontline will have our support when they come home.” Oh, please. By what metric exactly are the British armed forces “the best in the world”? By their tactical combat effectiveness? By their actual achievement of specific strategic goals (in which they’ve been constantly hampered by the underfunding, underequipping and wishful thinking on the part of their political masters)? By their compliance with the law of armed conflict? The Chilcot inquiry’s findings with respect to the armed forces’ performance in Basra do not exactly support the “best in the world/incredible job” label.

But okay, as I said this is the more forgivable type of pandering, even if it is the start of a fundamentally flawed narrative that blames any British military underperformance not on the fact that its political masters give the military impossible/misguided/unlawful missions to fulfil and not enough tools to do them with, but on some (completely unsubstantiated) supposed ill effect of human rights law. What is simply not forgivable is how the whole derogation idea is sold as protecting the (individual) troops. Thus Mrs May says that “We will repay them with gratitude and put an end to the industry of vexatious claims that has pursued those who served in previous conflicts” while the defence secretary notes that

Our legal system has been abused to level false charges against our troops on an industrial scale. It has caused significant distress to people who risked their lives to protect us, it has cost the taxpayer millions and there is a real risk it will stop our Armed Forces doing their job. This will help to protect our troops from vexatious claims, ensuring they can confidently take difficult decisions on the battlefield. And it will enable us to spend more of our growing defence budget on equipment for them rather than fees for lawyers.

There are several reasons why this argument is fundamentally flawed. First, it simply asserts, rather than provides any proof for, the claim that there exists an “industry of vexatious claims” and that “false charges” have been levied against our troops “on an industrial scale.” This is an empirical question, and not simply a matter of opinion. At the very least, we would need to know (1) how many claims have been made; (2) how many of these claims were “vexatious”; (3) and by what criteria is this vexatiousness to be judged. Without even an attempt at such analysis it simply cannot be said that the legal system is being abused.

In that regard I don’t doubt that there have been some claims that could properly be called vexatious (or “lawfare”), even if I reserve judgment on such accusations being levied against law firms such as the now-defunct Public Interest Lawyers and Leigh Day. But not every claim that ultimately turns out to be without merit can be said to be vexatious. Indeed, the potential for abuse exists for any kind of legal claim, not simply those relating to the armed forces. Without knowing, in other words, whether the percentage of vexatious claims dealing with the armed forces is significantly higher than for other types of claims (e.g. in construction, consumer protection or medical malpractice), we cannot really know what the problem is, how big it is and how to help solve it.

Second, even if the vexatious claims problem actually exists, derogations from the ECHR are almost certainly not going to fix it. My understanding is that the vast majority of claims against individual UK personnel regards allegations of mistreatment. Not only is Article 3 ECHR non-derogable, but I also very much doubt that the armed forces could benefit from some kind of derogation from the right of access to court under Article 6 ECHR (on which more below). Moreover, the mechanism of derogation is there to protect the state party to the ECHR, not any individuals, even if they are the state’s agents. While the scope of the state’s obligations might be varied under Article 15 ECHR, claims against individuals depend on the obligations of these individuals under other branches of the law that apply to these individuals, such as criminal law.

Third, the money spent on the fees of supposedly vexatious lawyers is even on the most generous assessment (£100 million for all cases (not simply the vexatious ones) since 2004, i.e. less than £10 million per year) a drop in the ocean when it comes to UK military expenditure, which stands at some $55 billion per annum. There are far better efficiency targets available – let’s just take as one example the procurement Charlie-Foxtrot that are the new British aircraft carriers, on which billions of pounds have been spent with little actual payoff. To say that British troops in Iraq didn’t have the proper body armour or vehicles equipped with effective counter-measures against improvised explosive devices because that money was (or would be) going to lawyers’ fees, as Fallon is basically implying, is not just dishonest, it is monstrously dishonest. It is in fact precisely these lawyers who helped British soldiers bring claims against their own country before British and European courts because their own government was failing them (the Smith and Pritchard cases). And it is these soldiers – and their families – who should be angriest because the consequences of governmental incompetence and mismanagement are now being blamed on a supposedly vexatious legal profession.

Finally, not only is the case for derogations being mis-sold, it is also being oversold. A derogation is only possible if there is a war or an emergency threatening the life of the nation, and can only be done to the extent strictly required by the exigencies of the situation. And it will be for the courts – British and European – to have the final say on whether the derogation was valid (cf. the Belmarsh saga after 9/11). This is not “exempting troops from human rights law”, but at best varying the standard of judicial scrutiny that will still very much be there. Note in that regard that there is caution in the language of the Ministry press release that obviously echoes the caution in the language of the government’s legal advice, saying that there will be a “presumption to derogate” but that derogation will be done “if possible in the circumstances that exist at that time,” but this obviously doesn’t come across in the public political pitch. There is a massive political risk here that derogations simply don’t deliver on what they were perceived to promise, which can only backfire for everybody concerned.

So, what should the government be doing? Again, as I said before derogations are to my mind a potentially positive idea. But they need to be done and considered carefully.

First, in that regard, the government should articulate a clear legal position (contrary to the judicial dicta I’ve already mentioned) that derogations are possible for extraterritorial situations. It is true, as the director of Liberty noted, that ““There is a dark irony in our government proposing derogation in wars of its choosing, even though many of those conflicts, like in Iraq and Afghanistan, are fought ostensibly in the name of human rights.” But the irony lies more, I would submit, in the fact that the terrible exigent circumstances were caused or contributed to by government policy, as in Iraq, Libya and Afghanistan, and at that in interventions that may have been ad bellum unlawful, as was Iraq. It is not in the supposed choice, or the ability to withdraw, from an overseas situation. I’ve thus argued that the ‘threat to the life of the nation’ criterion should be interpreted by reference to the life of the (overseas) local community in which the emergency is taking place, and that the more the ECHR is held to apply extraterritorially the less sensible it would seem to deny the possibility of extraterritorial derogation. In any event, the government would be well advised to have a clear position on this point, and to make that position public now rather than wait for an inevitable case in which the derogation will be challenged.

Second, the UK government should NOT take the road of high ambiguity that was recently employed by France and Turkey in their derogations. Not only will this undermine the whole purpose of derogations – providing further clarity – but it is not a strategy that is likely to be persuasive to the courts ultimately tasked with determining the derogation’s validity and effects. Precision both with regard to the nature and scope of the measures being taken and as to why they are strictly required by the exigencies of the situation would be of the greatest possible benefit.

Third, derogations would seems to make the most sense with respect to Articles 2 and 5 ECHR in times of cross-border or extraterritorial non-international armed conflict, because this is where clarity is needed the most. It would also be sensible to adopt domestic legislation further regulating the use of force and the grounds and procedure of deprivation of liberty in such circumstances.

Fourth, I doubt that derogations from the positive procedural obligation to investigate would be as effective, especially because that obligation already is (or can be) flexible (cf. Jaloud). In any case, while investigational obligations on the ground (e.g. Iraq) can be attenuated somewhat by reference to the prevailing exceptional circumstances, I very much doubt that the same could be done to investigations of British service people back home, in the peacetime conditions of the United Kingdom itself.

Finally, derogations from the Article 6 ECHR right of access to court (e.g. exempting partially the armed forces from judicial review) would almost certainly not work. Article 6 is not listed as a non-derogable right, but it is hard to see how such a (discriminatory) derogation could ever be said to be strictly required by the exigencies of the situation, as has in fact been confirmed by the Human Rights Committee vis-à-vis derogations from Article 14 ICCPR.

In sum, the government should be very careful in how it decides to use derogations from the ECHR, and should not give the impression that they are somehow a magical solution for problems both real and contrived. The demagoguery of the last few days unfortunately does not inspire much confidence in that regard.