By Jonathan Morgan
Reader in English Law, University of Cambridge
The new draft Bill of Rights fails to solve an important problem that has emerged in the 25-year history of the Human Rights Act 1998. The problem—unforeseen in 1998—is that the European Court of Human Rights (the ‘Strasbourg Court’) has extended the European Convention on Human Rights (‘ECHR’) to apply to military operations outside Europe (i.e. outside the countries signed up to the ECHR). This post briefly explains why this has been problematic, and why the problem is hard to solve.
While not all commentators agree that the ECHR should be confined to government action inside the territory of Europe, there is widespread concern about the process by which this extension has taken place. It has created significant legal uncertainty. There is also widespread agreement that there is little that Parliament can do unilaterally to solve this problem so long as Britain remains a member of the ECHR system. Its insoluble nature was accepted by the 2021 Independent Review of the Human Rights Act (‘IRHRA’) and apparently by the Government itself in its 2022 Consultation ‘Human Rights Act Reform: A Modern Bill of Rights’.
It is therefore surprising that the draft Bill of Rights does not apply to overseas military operations. However, it appears that there is less to this change than meets the eye. Given the symbolism of the Bill of Rights, appearances do matter. But since the Government envisages that ECHR obligations would continue to apply to military operations, the decision to exclude these from the Bill of Rights risks a misleading impression.
For years, the ECHR only applied to government action within their own territory (or other European states signed up to the Convention). This was confirmed by the Strasbourg court in Bankovic v Belgium in 2001. The date is significant: Bankovic was decided after the Human Rights Act 1998 and reflects legal opinion when Parliament enacted it. Bankovic was also before the Afghanistan and Iraq conflicts and was the legal basis for UK participation in those operations.
Departing from its Bankovic precedent in 2011, the Strasbourg Court held that the ECHR did apply to British military operation in Iraq: Al-Skeini v United Kingdom. The new doctrine has been developed in the following decade of cases. The legal story is complex and technical (an accessible account can be found in chapter 8 of the IRHRA report).
Many will think that all UK Government power should be constrained by the ECHR, including (perhaps especially) military force, wherever it is exercised in the world. Against this view, there are problems both in principle and in practice. This has led senior UK judges, and the IRHRA, to question the Strasbourg Court’s extension of the ECHR’s ‘territorial reach’.
All accept that international laws govern military force. But the traditional understanding is that humanitarian obligations are located in the Laws of Armed Conflict, e.g. the Geneva Conventions. It can be questioned whether adding another layer of obligations—the ECHR—does anything except duplicate this. Indeed, since ECHR rights primarily apply to peacetime situations, it is arguably unsuitable for military conflict (whereas laws like the Geneva Conventions are designed for wartime’s unique difficulties). Some lawyers question whether the ECHR applies outside the territory of Europe given the Vienna Convention on Interpretation of Treaties (1969).
Another legal objection is that while it might be desirable for the Strasbourg Court to update the substance of rights like freedom of speech in the light of modern conditions, this ‘living instrument’ doctrine should not apply to the ECHR’s scope. Rather, that should reflect the understanding of states who signed the ECHR in 1950. They would not have expected it to apply to overseas conflicts. Jack Straw, Home Secretary responsible for the Human Rights Act 1998, confirms that that was certainly not the understanding or intention of the then Blair Government.
Practical concerns are the uncertainty created by the ECHR’s unpredictable extension by the Strasbourg Court. This is especially problematic for military planning: the armed forces are committed to compliance with the Rule of Law, but if the content of their obligations is uncertain it becomes an impossible task.
The problem has arisen because the Strasbourg Court has transformed the basis and scope of the ECHR. For this reason, however, there is little that the United Kingdom Parliament can do unilaterally to reverse the situation. The IRHRA, although accepting that there was a problem, rejected the idea that amendments to the HRA 1998 could solve it. Instead, IRHRA recommended continued dialogue on this question between the British Government and other members of the ECHR system, and between judges in UK courts and the Strasbourg Court.
While the UK could leave the ECHR altogether, the UK Government has ruled out withdrawal. Secondly, governments can ‘derogate from’ (i.e. disapply) some of the ECHR in times of emergency. The UK Government has said it will consider doing so in future armed conflicts. However, the Strasbourg Court would have to decide whether the derogation was legally valid—and some obligations are ‘non derogable’ even in wartime. Apart from this partial potential exception (‘derogations’) the ECHR will therefore continue to bind the UK even following the Bill of Rights. And the Strasbourg Court decides what the ECHR means.
Clause 14 of the Bill of Rights nevertheless states that it would not apply to military operations overseas. This option was opposed by a large majority of those who responded to the Government’s consultation on the Bill of Rights. Responding to the consultation the Government argues (at para ): ‘it is the right time to signal at domestic level our commitment to the principle that claims relating to overseas military operations should not be brought under human rights legislation, given that the [ECHR] was not originally intended to apply extraterritorially and was never designed to regulate conflict situations’.
This seems to open a large gap between the draft Bill of Rights (inapplicable to overseas military operations) and the ECHR (which would still apply—an Act of Parliament cannot alter the meaning of an international treaty like the ECHR).
However, the Government makes clear that Clause 14 of the Bill of Rights would only come into force if other laws are enacted to preserve the ECHR’s continued application to conflicts overseas (Clause 39(3)). While the details remain to be seen, it does appear that the ECHR obligations would continue to bind UK forces as a matter of domestic law. The source would not be in the Bill of Rights, but in a separate statute. This would make no practical difference, so we may question what the point of the (apparent) exemption in the Bill of Rights is.
The Government argues that it ‘signals’ the UK’s view that human rights duties should not apply in this situation. But when the relevant ECHR duties are going to be re-imposed by another legal instrument, the ‘signal’ seems to be muted, or even contradicted. Would it not be simpler to locate these human rights duties in the Bill of Rights while pursuing the ‘dialogue’ option that IRHRA recommended? The Government is seeking to deny inevitable implications of its decision to remain within the ECHR system. The denial is unconvincing.