Ben Gaston, solicitor in Bindmans’ Public Law and Human Rights team, outlines the situation surrounding the Prime Minister’s recent pledge to “opt out” the UK Military from the European Convention on Human Rights.

He explains that the situation is more nuanced than it might first appear and, while the Convention does allow for derogation from certain obligations, any derogations would need to be approved by Parliament, may be subject to review by the UK courts, and the Secretary General of the Council of Europe would need to be informed of the relevant measures.

1. Prime Minister, Theresa May has pledged to end the ‘industry of vexatious claims’ that have been pitted against members of the armed forces by exempting them from the jurisdiction of the European Convention on Human Rights (Convention). What has prompted this move?

Defence Secretary Michael Fallon addressed the issue in a written statement to Parliament on 10 October 2016. There appear to be two drivers for the move.

First, the so-called ‘extended’ reach of the Convention, which, according to Mr Fallon, was ‘never envisaged by the Convention’s authors’. The Government here is referring to a line of domestic and Strasbourg cases – notably Al-Skeini v United Kingdom (2011) 53 EHRR 18 – in which the Convention has been held to have extraterritorial application, allowing soldiers and others to bring human rights-based claims arising from events that occurred outside the UK. Whether this scope was envisaged by the Convention’s authors (and whether this is even relevant) is a matter of debate, although it is, of course, the case that the Convention and other similar human rights instruments arose as a response to the horrors of the Second World War.

Relatedly, there is the ‘unprecedented level of litigation’ brought against the armed forces, which, Mr Fallon says, has resulted in increasing uncertainty and distress to current personnel and veterans, all at a huge cost to the taxpayer. This statement is presumed to be directed at claims brought on behalf of Afghani and Iraqi civilians, who allege that they suffered abuse at the hands of the UK armed forces during the UK’s military campaigns abroad.

2. What is meant by the ‘industry of vexatious claims’? What does ‘vexatious’ mean in this context? Are there any specific case law examples cited?

The meaning of ‘vexatious claims’ in this context – and the rationale for the proposals themselves – is not entirely clear. It is generally understood, however, to refer to individuals and (in Mr Fallon’s words) a ‘small number of law firms’ who have brought civil and public law claims against the Ministry of Defence for (among other things) alleged breaches of the Convention, such as during UK military campaigns in Afghanistan and Iraq.

By ‘vexatious’, it is assumed that the Government means ‘without merit’ or ‘spurious’. One might question in this respect whether it is appropriate for one party to litigation, rather than the courts, to decide whether a case is meritorious or not. Indeed, there are fundamental constitutional arguments to the contrary. Moreover, a number of the claims to which the Government appears to be referring have been successful.

3. In practice, how could this ‘opt out’ be achieved lawfully and when would it apply?

Article 15 of the Convention allows signatories to derogate from certain obligations:

in time of war or other public emergency threatening the life of the nation… to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with… obligations under international law.

The power to derogate is therefore not unfettered, and is further constrained by reference to the Convention’s constituent provisions. As Mr Fallon’s statement acknowledged, signatories cannot ‘opt out’ of certain articles, including:

• Article 2 (right to life, except in respect of ‘lawful acts of war’);
• Article 3 (prohibition of torture);
• Article 4(1) (prohibition of slavery and servitude);
• Article 7 (no punishment without law); and
• Article 1 of protocol 13 (abolition of the death penalty).

Articles 2 and 3, in particular, are the provisions under which many of the claims against the armed forces are brought.

Derogations also require Parliamentary approval (by both Houses) and are subject to judicial oversight, both by domestic courts (see below) and the European Court of Human Rights in Strasbourg.

It is difficult to predict the substantive or temporal scope of any future UK derogations, which would depend on the wording of the domestic instrument seeking to implement the derogation. Nor is it clear from the Government’s statements from which articles the UK would seek to derogate. What does appear clear, however, is that the Government will at least consider derogation each time military operations are contemplated.

4. Would a derogation call previous cases into question?

There is no express provision in article 15 that prohibits a retrospective derogation. However, the requirement to keep the Secretary General of the Council of Europe (the body that oversees compliance with the Convention) informed of the relevant measures, as well as general public and international law principles and the obvious negative public perception, renders any attempted retrospective derogation unlikely. If such a derogation were attempted, it would likely be subject to anxious scrutiny by Parliament and the courts.

5. Has there been a history of other signatories to the Convention derogating from its provisions and how have they been perceived internationally?

Council of Europe figures from July 2016 state that eight signatory States – including the UK – have previously relied on their right to derogate from the Convention.

Following the 11 September 2001 Al-Qaeda attacks in New York, the then Labour Government sought a derogation from article 5(1) of the Convention in order to detain non-UK nationals whom the Home Secretary considered a risk to national security, but who could not be deported because of fears for their safety. Individuals affected challenged the underlying measures before the highest court in the UK, then the Appellate Committee of the House of Lords.

The majority of the Lords accepted the Government’s assessment that there was a ‘public emergency threatening the life of the nation’ (Lord Hoffmann giving the only – and now well known – dissent). However, the Court quashed the derogation Order and declared the relevant primary legislation incompatible with the Convention, on the basis that the measures were not ‘strictly required by the exigencies of the situation’ (as required by article 15(1)), including owing to the unjustifiable discrimination between UK and non-UK nationals. See A & others v Secretary of State for the Home Department [2004] UKHL 56, [2005] 2 AC 68.

In November 2015, France informed the Council of Europe that emergency measures following terrorist attacks in Paris may involve derogation from certain Convention rights. France further notified the Council of Europe of extensions to the measures (including ‘administrative searches’) following the Nice terrorist attack in July 2016.

More recently, in Turkey, the Government of President Erdoğan has indicated its intention to derogate from the Convention following the attempted coup during the summer of 2016.

6. Is there a suspicion that this ‘opt out’ could lead to a pathway of the UK derogating from similar provisions in the future or are there protections in place?

Government statements indicate a new policy of derogating from the Convention each time the UK embarks upon military operations where it is considered ‘appropriate in the precise circumstances of the operation in question.’ However, each derogation would be subject to the conditions set out in article 15. This includes notification to the Council of Europe, which must be kept ‘fully informed’ of the measures and the reasons for them. Moreover, the lawfulness of each derogation would be subject to judicial review by the UK courts, as in the A & others case.

One interesting issue will be the proper meaning of the phrase ‘in time of war’, which acts both as a potential trigger to a general derogation, but would also allow derogation from article 2 (right to life) where a ‘lawful act of war’ is concerned. Yet article 2 encompasses a broader set of rights, including procedural and investigative obligations, which, it may be argued, should not be the subject of derogation in any circumstances. In any event, future derogations would not exempt the UK from either the substantive or investigative obligations under article 3 (prohibition on torture or degrading treatment), which have been pleaded in many of the so-called ‘vexatious’ claims against the Ministry of Defence.

7. Does this move, which potentially excludes victims from receiving justice for any misdoings by members of the armed forces, undermine the Rule of Law in your opinion?

The legal issues are complex and far more nuanced than Government statements and some journalists have suggested.

On the one hand, derogations are explicitly envisaged by the Convention, are circumscribed by article 15, and are subject to judicial oversight. In this sense, they could be said to comply with at least the procedural requirements of the Rule of Law (see, for example, Tom Bingham’s – formerly senior Law Lord, Lord Bingham – First Principle that ‘the law must be accessible and so far as possible, intelligible, clear and predictable’).

However, actions against the State – the very nature of which means that one party controls the legal tools available to its opponent – are a special case. This is reflected in Tom Bingham’s Fifth Principle: that public powers should be exercised for the purpose(s) for which they were conferred, without exceeding their limits and not unreasonably. Where an individual challenges the State, on whatever grounds, one might question whether it is constitutionally appropriate for the State to seek to remove certain rights in order to protect its own interests.

This article was first published by LexisNexis.