Military Operations: European Convention on Human Rights Derogation

Michael Fallon Excerpts

Monday 10th October 2016 Written Statements

[The Secretary of State for Defence (Michael Fallon)]

Over the past decade a series of court judgments have extended the reach of the European convention on human rights to combat zones. This extra-territorial jurisdiction was never envisaged by the convention’s authors.

While the courts have been seeking to reconcile the convention with the long established law of armed conflict (or international humanitarian law), our military personnel have been engaged in operations overseas in support of the international community. They have had to do so in the face of growing legal uncertainty and an unprecedented level of litigation, much of it fuelled by a small number of law firms. In addition to the millions of pounds this litigation has been costing the taxpayer, the resulting uncertainties have been distressing to many current personnel and veterans, and military advice is that there is a risk of seriously undermining the operational effectiveness of the armed forces.

It is for these reasons that the Government through a range of measures are implementing the manifesto commitment to ensure our armed forces overseas are not subject to persistent legal claims that undermine their ability to do their job.

I am today informing the House that before embarking on significant future military operations, this Government intend derogating from the European convention on human rights, where this is appropriate in the precise circumstances of the operation in question. Any derogation would need to be justified and could only be made from certain articles of the convention.

In the event of such a derogation, our armed forces will continue to operate to the highest standards and be subject to the rule of law. They remain at all times subject to UK Service Law, which incorporates the criminal law of England and Wales, and international humanitarian law (the law of armed conflict including the Geneva conventions) wherever in the world they are serving. Therefore any credible allegations of criminal wrongdoing by members of the armed forces will continue to be investigated, and prosecuted within the service justice system.

Meanwhile the Government will continue to work tirelessly to uphold international humanitarian law in armed conflicts and to ensure that the appropriate, time-honoured balance between military necessity and humanitarian concerns—as enshrined in the Geneva conventions—continues to govern armed conflicts throughout the world.

This announcement is an important part of our plan to deliver our manifesto pledge including limiting the length of time that claims can be brought against the Government; strengthening the penalties for firms who engage in vexatious practices; and to reducing the financial incentive for law firms to pursue spurious claims.

[HCWS168]