Member Article

Britain should not give up on ECHR

The UK Government has formally announced it intends to derogate from the European Convention on Human Rights (Convention) in future conflicts by creating a ‘presumption of derogation’. According to Article 15 of the Convention, this means that in time of war or other public emergency, Britain can take measures which derogate from its obligations under the Convention.

The presumption essentially means that the starting point in wartime for British troops will be a derogation from the Convention and the rights it protects, unless the Government decides that they will abide by the Convention.

Article 15 should not be taken lightly. The Article should not be invoked unless there are exceptional circumstances such as terrorism. In fact, a derogation was permitted to the UK after the 9/11 terrorist atrocities.

However, there are some rights within the Convention which are inalienable and so cannot be derogated, such as the right to freedom from torture, inhuman and degrading treatment in Article 3. This is an important point because the premise behind the Government’s stance is to stop what they consider to be vexatious claims against the military mainly resulting from our role in the conflicts in Afghanistan and Iraq.

According to Liberty, a lot of the claims are based on British troops breaching Article 3 and if derogation does not apply to Article 3, it seems that this stance by the Government won’t stop such claims.

Further, Liberty argues that the majority of claims were not vexatious which seems correct, otherwise why would the Government already have paid out about £20 million in compensation to victims of abuse in Iraq?

Much criticism has been made by the Government against two law firms, who by all accounts have been doing their jobs in trying to act in the best interests of their clients, for representing and bringing these claims.

The Law Society, which represents solicitors in England and Wales, has defended the law firms by accusing the Government of attempting to undermine the rule of law by intimidating solicitors who pursue legitimate cases.

It seems a weak argument that derogation is meant to protect our troops from vexatious claims when I expect most of our troops are proud of the fact that they are trained to protect Britain and act within human rights principles. And most of them manage to achieve this successfully and, thus, stand as a beacon to all other military organisations that don’t follow the Convention.

So why the need to derogate from the Convention at all? Why can’t the Government just ignore the Convention? The reason is that we have signed up to the Convention, to have our own rights protected in the same way we have agreed to protect the rights of others. Before the enactment and commencement of the Human Rights Act, the only way to challenge a breach of one’s human rights was to take a case to the European Court of Human Rights (ECHR), which was a slow and very expensive process.

The Human Rights Act now allows our courts to look at the Convention and judge whether the authorities in Britain respect the rights it protects.

The ECHR does not make or change the law in Britain. Instead, it makes a judgement when something is ‘incompatible’ with our protected human rights, and lets the government in question take measures on how to correct the incompatibility.

Member states of the Council of Europe have ratified the Convention, and we are one such member state. This means that we are required to abide by its terms. The ECHR applies the Convention to ensure that states respect the rights and guarantees set out in it. Judgements are binding: Britain is under an obligation to comply with them. If the ECHR finds that there has been a violation, it may award you “just satisfaction”, which is a sum of money in compensation. The ECHR may also require Britain to refund the expenses the claimant has incurred in presenting their case.

We should look at all the good the Convention has done for our military: we are well-respected throughout the world for our troops’ ability to abide by the Convention – a few bad apples do not represent the military.

16 years ago the army in Britain was found to have violated the rights of two British troops by dismissing them for being gay. This led to a change in the law to allow gay members of the armed forces to be open about their sexuality.

Remember that when we ratified the Convention in 1951, our human rights had been violated by war and we wanted to make sure that didn’t happen to us again and that it didn’t happen to anyone else. It seems strange that what created the Convention – wartime – is now being used to try and undermine it.

Salome Verrell is a solicitor and a senior lecturer at The University of Law (ULaw). ULaw is the largest and longest established provider of professional legal education in the UK.

This was posted in Bdaily's Members' News section by Salome Verrell .