Written evidence submitted by Judicial Power Project

 

How to Address the Reach of European Human Rights Law

 

  1. The Judicial Power Project considers the scope of judicial power within the constitution. The ongoing expansion of judicial power increasingly threatens the rule of law and effective, democratic government.  The Project aims to address this problem – to restore balance to the constitution – by making clear the good sense of separating judicial and political authority.  Our first research paper, Clearing the Fog of Law (March 2015), addressed the judicialisation of war, and recommended, inter alia, that in future conflicts the Government should derogate from the European Convention on Human Rights (ECHR).  The Project is supported by Policy Exchange, the UK’s leading think-tank.

 

Summary

 

  1. The work of the Iraq Historic Allegations Team (IHAT) is the Government’s response to its obligations under the Human Rights Act 1998 (HRA), which partly incorporates the ECHR into domestic law.  European human rights law has been improperly extended to a wide range of military action abroad and there are good reasons to limit its reach.  In relation to future conflicts, invoking Art 15 of the ECHR may help serve this end.  However, this cannot address the application of the ECHR to past events in Iraq.  Instead, Parliament should legislate to amend the territorial reach of the HRA, which would help reinstate international humanitarian law as the relevant body of controlling law.  This legislation would very likely be challenged in the courts but there is a principled case for its enactment.  The legislation would free the Government to limit the scope of IHAT if it wishes, although in so doing it should consider the risk of International Criminal Court (ICC) action.

 

Legal background

 

  1. Part of the legacy of British military action in Afghanistan and Iraq has been (i) an explosion of litigation in the English courts, alleging that the Government has committed civil wrongs or breached European human rights law, and (ii) a large number of inquiries into wrongdoing on the part of individual soldiers. 

 

  1. The two developments are related because the European Court of Human Rights (ECtHR) has held that European human rights law applies to military action outside the UK, indeed outside the territory of the Council of Europe.  And some provisions of the ECHR have been interpreted as requiring the state to undertake independent investigations into alleged wrongdoing.  Taken together with section 6 of the HRA, these decisions mean that the Government has a legal duty, in English law, to investigate, by reference to ECHR standards, and if it fails to meet this duty it is liable to be challenged in the English courts (and later in the ECtHR).  The UK, like other states, also has duties to investigate alleged war crimes under international humanitarian law, but the duties are different in scope and enforcement.

 

  1. Like other signatories to the ECHR, the UK has undertaken, per Art 1, to secure the convention rights of all persons within its “jurisdiction”.  At the time the UK undertook military action in Iraq it was clear that “jurisdiction” was primarily territorial.  There were some limited exceptions, but the basic idea was that the ECHR only applied within the state’s territory.  The ECtHR in Bankovic v Belgium, in 2002, expressly rejected the idea that the meaning of “jurisdiction” could be expanded over time.  However, the ECtHR in 2011, in Al-Skeini v UK, implicitly abandoned this long-settled understanding and instead asserted a new interpretation that turned not primarily on territory but on vague ideas about control, public power, and the use of force. 

 

  1. Thus, in effect, the Court retrospectively extended the reach of the ECHR so that it applied to a wide range of British military action abroad.  This move gave rise to a great deal of litigation, as persons in Iraq and Afghanistan (including enemy combatants) brought legal action against the Government for breach of their Convention rights, including Art 2 (the right to life), Art 3 (the right not to be tortured), and Art 5 (liberty and security of the person).  The ECtHR has interpreted Art 2 and Art 3 not simply to prohibit intentional killing or torture, but also to entail a positive duty to independently investigate alleged state wrongdoing. 

 

  1. Section 6 of the HRA requires the Government not to breach Convention rights.  (Apart from the 1998 Act, and this section in particular, the Government has no obligation in domestic law not to breach Convention rights.  The UK is required by international law not to breach the ECHR, but this is a separate matter.) 

 

  1. In 2007, a majority of the UK’s highest court ruled that the HRA applied extra-territorially, but only in the very limited way that the Strasbourg court had sometimes held.  Lord Bingham, the greatest judge of his generation, had been in a minority in ruling that the HRA should be held to apply only within the UK.  The ruling by the majority that the scope of the HRA tracked the UK’s “jurisdiction” caused no major problems until the ECtHR radically unsettled the meaning of “jurisdiction” in 2011.  The two rulings taken together mean that the HRA is now held to have applied, since it came into force in 2000, to British military action anywhere, provided it falls within the new, expansive idea of “jurisdiction”.

 

The problem

 

  1. As the law now stands, subject to possible derogation, the Government has little choice but to take European human rights law to apply to military action abroad.  This means that its powers to detain enemy combatants are governed not first and foremost by international humanitarian law but by Art 5 of the ECHR (although note the ECtHR has recently attempted to interpret Art 5 consistently with international humanitarian law).  It means that the standard for determining the legality of killing is not international humanitarian law, whether in its application to international or non-international armed conflicts, but Art 2 of the ECHR.  And it means, further, that the positive duties to investigate that the ECtHR has read into the text of Arts 2 and 3 apply as well.  It is the latter duties, which as I understand it go well beyond analogous duties imposed by international humanitarian law, that have required the Government to set up and maintain IHAT. 

 

  1. The Government is unable to limit the reach of IHAT and thus to limit its excesses unless it is freed from its duty in English law to conform to European human rights law.  The question is how this is to be done. 

 

Possible solutions

 

  1. It is possible that in an appeal soon to be heard the UK Supreme Court will revise the territorial scope of the HRA or will reject the ECtHR’s expansive understanding of “jurisdiction”, which would effectively limit the HRA’s scope.  However, it is not likely that the Supreme Court will do this, not least since it would likely place the UK on a collision course with the ECtHR, which our domestic courts are understandably reluctant to do. 

 

  1. The Government has announced that in future conflicts it will invoke Art 15 of the ECHR and derogate from the Convention in relation to military action abroad.  This is a commendable and overdue step which promises to help reinstate international humanitarian law as the relevant controlling body of law.  It will be open to any future Government to abandon the recently announced policy.  The exercise of Art 15 is vulnerable to legal challenge, in the domestic courts and before the ECtHR, and in any case will not completely end the application of European human rights law.  But it would limit its application in important ways.  However, invoking Art 15 in the future does nothing in relation to the ongoing application of European human rights law to actions in Iraq in the past. 

 

The need for legislative action

 

  1. The way to solve the problem is for Parliament to amend the HRA, specifying either (i) that it only applies within the UK itself (as Lord Bingham had thought it did) or (ii) that its application is limited by the old idea of “jurisdiction”, which is primarily territorial with limited extra-territorial application (as the other judges in 2007 had assumed).  The second option would be relatively less controversial.  Either option would limit the Government’s subjection to duties in English law, by way of section 6 of the HRA, to follow European human rights law in relation to future military action.  This legislative solution would survive any later change in Government policy in relation to Art 15.

 

  1. In the absence of express statutory language to the contrary, the British courts would presume that any such change to the HRA was intended to apply only to cases that arose after the change came into force.  That is, it would not end a duty to investigate past allegations and would not cut across ongoing litigation against the Government in relation to them. 

 

  1. However, this amendment to the scope of the HRA could be made retrospective, so that it applied to the legality of Government action in the past as well as the future.  More precisely, Parliament could specify that this amendment to the HRA applies in relation to ongoing investigations and to ongoing litigation before the courts.  It would not unravel litigation already decided but it would block the successful completion of ongoing cases.  And it would free the Government to choose to limit the work of IHAT.  It may be that limiting the work of IHAT creates a risk of ICC action, which the Government would need to consider.

 

  1. The UK would rightly continue to be subject to international humanitarian law, which forbids war crimes, and to additional obligations under the Rome Statute, which establishes the ICC and is partly incorporated into domestic law.  The Government should undertake to continue to investigate plausible allegations of war crimes by British forces, as is required under international humanitarian law.  Individual soldiers would continue to be subject to other norms of English law which prohibit mistreatment of civilians. 

 

  1. This proposed change to the scope of the HRA would not itself change the UK’s obligations in international law in relation to the ECHR.  It would change the terms by which those obligations are incorporated into domestic law and would change the Government’s legal duties as a matter of English law enforceable in the ordinary courts. 

 

The risks of legal challenge

 

  1. The proposed amendment to the HRA would invite legal challenge.  In the domestic courts, litigants would seek a declaration that the amendment is in breach of their Convention rights.  This application would take many forms. 

 

  1. Some litigants would allege that the Government was in breach of Art 2 or Art 3 for having discontinued an investigation or having failed to undertake an Art 2 or Art 3 compliant investigation.  Others would argue that Parliament had undermined their Art 6 right to have a fair and public hearing, by cutting short the legal proceedings they had begun. 

 

  1. This legal challenge could not result in the British courts invalidating the amendment and so restoring the Government’s duty in English law to conform to European human rights law in Iraq.  But it could result in a declaration under the HRA that the legislation breaches the ECHR.  Whether the British courts did or did not grant such a declaration, some litigants would proceed to Strasbourg to invite the ECtHR to rule that the UK was in breach of the ECHR by having enacted the legislation and by having failed to apply fully the demands of European human rights law in relation to past events in Iraq.

 

  1. Unless the ECtHR were to change its mind as to the scope of “jurisdiction” under Art 1, which is unlikely, the UK would lose these legal proceedings in Strasbourg.  This ruling would not change English law.  But it would require British political authorities to decide whether to conform to the ECtHR’s ruling or not.  The UK has undertaken to comply with judgments of the ECtHR, per Art 46(1) of the ECHR.  However, Parliament has not conformed to the ECtHR’s rulings in relation to prisoner voting.  In principle, it would certainly be open to a sovereign Parliament to take a similar position again. 

 

  1. The inevitable criticism that would be made of this course of action is that Parliament and the Government were placing the UK in breach of its international obligations under the ECHR and undermining the international rule of law.  The principled response would be to say that the UK is not willing to conform to rulings of the ECtHR that grossly misinterpret the ECHR and abandon the terms agreed by the member states. 

 

  1. Lord Mance in the UK Supreme Court has outlined such a principled case for resisting the wayward judgments of international courts, although he had in mind the Court of Justice of the European Union rather than the ECtHR.  Still, the same argument holds and the legislative amendment this submission proposes would vindicate the rule of law, by restoring the legal position at the time the UK went to war in Iraq.  It would thus answer the ECtHR’s retrospective extension of the reach of the ECHR.

 

Professor Richard Ekins

Associate Professor, University of Oxford, Fellow of St John’s College, Head of the Judicial Power Project

 

17 October 2016