The UK Parliament’s Joint Committee on Human Rights (JCHR) has written to the Secretary of State for Defence, Michael Fallon, requesting details about the Government’s proposal to derogate from the European Convention on Human Rights (ECHR) in future armed conflicts. The proposal for a ‘presumption to derogate’ from the ECHR was announced on 4 October 2016. The Government’s stated rationale for the policy is to “put an end to the industry of vexatious claims that has pursued those who served in previous conflicts”. The proposal has recently been analysed on this blog here.

In its letter, the JCHR affirms that derogating from the UK’s international human rights obligations is a ‘very serious matter’ and emphasises that Parliament has ‘a very important role to play’ in scrutinising the reasons for any proposed derogation. Parliament must also assess the scope of measures derogating from the Convention, in order to ensure that derogation is justified and that the ‘strict conditions’ in Article 15 ECHR, required for the exercise of this ‘exceptional power’, are met.

The JCHR has asked the Government to clarify several empirical matters to support its assertion that there is an ‘industry of vexatious claims’ arising out of recent armed conflicts. Key details, as yet unknown, include:

• The total number of claims arising from operations in Iraq and Afghanistan;
• The total number of claims which have been settled by the Ministry of Defence; and
• The total number of claims which have been thrown out by a court on the ground that the claim is vexatious.

Other questions are designed to elicit from the Government evidence to support its view that the extraterritorial application of human rights laws ‘undermines the operational effectiveness’ of the UK’s armed forces.

Crucially, the JCHR requests that the Government explain how its proposal is compatible with the substantive requirements of Article 15 ECHR. Article 15 does permit States to derogate from certain rights in the Convention ‘in time of war or other public emergency threatening the life of the nation’. However, to ensure that this power is not abused, Article 15 is subject to several limitations. For example, States may only take measures derogating from the Convention ‘to the extent strictly required by the exigencies of the situation’. The JCHR usefully invites the Government to clarify how a ‘presumption of derogation’ fits with this requirement that a factual analysis of prevailing conditions must justify any resort to Article 15.

The JCHR alludes in its letter to A v Secretary of State for the Home Department [2004] UKHL 56, also known as the ‘Belmarsh case’, which arose the last time the UK derogated from the Convention. In the wake of the terrorist attacks of 11 September 2001, the UK introduced special arrangements permitting indefinite detention of foreign national terrorist suspects. The House of Lords (now the Supreme Court) deferred to the Government’s view that there was a ‘public emergency threatening the life of the nation’, but ultimately held that the detention arrangements were disproportionate and discriminatory (British nationals, excluded from the policy, also posed a threat). The European Court of Human Rights upheld these conclusions in A v United Kingdom. As a result, there was a violation of Article 5(1) ECHR (the right to liberty) in respect of several applicants.

Parliament had very little opportunity to scrutinise the derogation measures which featured in the Belmarsh case. The JCHR advises the Government that early provision of information will ameliorate parliamentary scrutiny of the Government’s recent derogation proposal.

The JCHR is asking some extremely pertinent questions. It is hoped that the JCHR’s request for information will prompt the Government to consider carefully whether derogation could meet the ostensible aim of putting an end to ‘vexatious claims’ against soldiers (I have argued here that it cannot). Though it may be appropriate in some circumstances, derogation from the Convention under Article 15 has serious consequences. It empowers a State unilaterally to suspend the application of certain human rights. Such an approach demands precise justification and careful scrutiny; it must not be taken lightly.