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ECHR: Committee launches inquiry into Government's proposed derogation

16 December 2016

The Joint Committee on Human Rights, calls for written submissions on the Government's announced intention to derogate from the European Convention on Human Rights (ECHR) before embarking on significant future military operations.  The Government's intention was announced in a Written Ministerial Statement by the Secretary of State for Defence on 10 October 2016.

The Committee considers that derogating from the UK's international human rights obligations is a very serious matter.  It wants to ensure that Parliament has an adequate opportunity to scrutinise the reasons for any proposed derogation to satisfy itself that the proposed derogation is justified and that the strict conditions for the exercise of the exceptional power to derogate are met.

The circumstances in which the Government would bring forward an actual derogation, in the context of a proposed significant military operation overseas, would not be conducive to such careful and detailed scrutiny.  The Committee has therefore decided to call for evidence in advance of an actual derogation, to enable it to scrutinise the likely justification for such a derogation, and to enable it to respond swiftly in the event of such a derogation taking place.  The Human Rights Act provides for parliamentary scrutiny of derogations and the Committee wishes to ensure that such scrutiny is as well informed as possible.

Call for written submissions

Submissions of no more than 3,000 words are invited from interested groups and individuals focusing on the following issues:

  • What evidence supports the Government's view that "our legal system has been abused to level false charges against our troops on an industrial scale"?
  • What evidence supports the Government's view that the extra-territorial applicability of the ECHR undermines the operational effectiveness of the Armed Forces?
  • Are the substantive requirements of Article 15 ECHR likely to be satisfied in the circumstances in which the Government intends to derogate?
  • Are there alternatives to derogation which would achieve the Government's objective of protecting the armed forces against unfounded legal claims?
  • Are there any wider implications of the UK derogating from the extra-territorial application of the Convention in military operations, such as effects on other countries or on the European system for the collective enforcement of human rights?
  • Should the derogating measures be contained in primary legislation?
  • Is it appropriate for the Ministry of Defence to have lead responsibility for a policy the purpose of which is to protect the MoD from legal claims?

Submit your views through the Government's proposed derogation from the ECHR inquiry page.

Deadline for written submissions is Friday 31 March 2017.

Inquiry background

The Committee wrote to the Secretary of State for Defence on 13 October (PDF 515KB) asking to be provided with a detailed memorandum explaining the reasons why a derogation from the ECHR is considered to be necessary, including the evidence which demonstrates the nature and extent of the problem to which derogation is the solution, and addressing a number of specific questions raised by the Committee.

The Secretary of State for Defence replied to the Committee on 22 November, saying that many of the Committee's questions cannot be answered either fully or at all at this time, because the Government has only announced an intention to derogate, not an actual derogation, and is highly reluctant to engage in hypothetical debate in advance of a concrete issue arising in particular circumstances.

The Government says that any derogation would need to be justified in the precise circumstances of the particular military operation in question.  However, the purpose of announcing its intention was "to make clear that we consider that it may well be right and proper to make use of the provision for derogation contained in Article 15 in future operations overseas."

Chair's comment

Committee Chair Harriet Harman said:

"Derogating from the UK's international human rights obligations is a very serious matter which calls for the most careful scrutiny by Parliament.  The last time the UK derogated from the ECHR, in the wake of 9/11, the derogation received little parliamentary scrutiny and was later found to be incompatible with the ECHR by both the UK's highest court and the European Court of Human Rights.  This time, the Government's case for intending to derogate rests on a number of assertions which need to be rigorously tested. 

We have asked the Government a number of detailed questions but it has declined to answer some of them, fully or at all, on the basis that they are hypothetical because at this stage it only intends to derogate in future military operations. If and when that time comes, there is unlikely to be time for proper, considered scrutiny of the Government's case for derogation.  That scrutiny needs to start now, so that Parliament is ready to do its job of rigorously scrutinising the justification for any future derogation."

Further information

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