Academic journal article Nottingham Law Journal

IN FAINT PRAISE OF THE DEROGATING WILL: The UK, ECHR Derogation, and Smith V. MOD

Academic journal article Nottingham Law Journal

IN FAINT PRAISE OF THE DEROGATING WILL: The UK, ECHR Derogation, and Smith V. MOD

Article excerpt

The UK, ECHR derogation, and Smith v. MOD (1)

Social peace is a two-sided affair. Ultimately our societies
       depend on shared bonds and mutual understanding.
              From time to time, voices do speak in terms
                   which are not helpful to the rule of law. (2)

INTRODUCTION

Reducing the country's human rights obligations has been officially mooted by various UK governments over the years. Although legislative change is not considered to be imminent, (3) a flavour of the rising irritation at human rights obligations, voiced in official British circles, is easily located within the most contentious environment for human rights law in Britain: the extra-territorial effect and application of the European Convention on Human Rights (ECHR), and most particularly, of ECHR applicability during Council of Europe Member State deployments of their armed forces overseas. This development has become especially contentious in Britain in recent years, due to the fairly-frequent deployment of its armed forces overseas, not least in Afghanistan and Iraq. (4) Therefore, this short discussion seeks to overview some of the legal implications of human rights legislative change in a post-EU, or 'Brexit', UK, (5) in which EU- and ECHR-related human rights obligations may both disappear or be greatly diminished.

On the basis of official British irritation at human rights, it may come as little surprise to some that, in what was potentially a first step towards eventual legislative change to current standards of substantive human rights coverage, the then Conservative Party--led government, on 4 October 2016, expressly declared its intention to derogate in future overseas deployments and operations from its human rights commitments to British military personnel, 'if possible, in the circumstances that exist at that time'. (6) The then government's two main rationales were linked: the military should not be unduly hampered by fear of litigation, in general, when planning military operations and deploying its personnel overseas, and the government should not be exposed, in particular, to 'vexatious' human rights litigation in such a context, which has in fact occurred during recent deployments in Iraq and Afghanistan, and which has been highly-expensive. To clarify the latter point, military-linked litigation has arisen during recent deployments overseas of British forces, and has been generated either by the death or injury of British military personnel themselves, or by the death or injury of persons whom British personnel have detained and/or imprisoned.

The extra-territorial extension abroad of the ECHR is fairly recent, (7) while, in contrast, securing the rights of serving British military personnel has developed only slowly, over many years, starting with the Crown Proceedings (Armed Forces) Act 1987, which statute finally allowed service personnel to sue the Ministry of Defence (MOD) for negligence. (8) Since then, a recognition, both in law and amongst the public, has grown that governmental responsibility for arbitrarily-inflicted death or injury of, or by, (9) British military personnel, including when on active duty overseas, is in fact the proper subject of express rights obligations. In turn, the ECHR, as a 'living instrument', (10) is interpreted teleologically, such that its eventual, extra-territorial extension should not be overly-surprising. Moreover, inasmuch as the English courts, since 1998, have had direct jurisdiction over claims arising under the ECHR brought in Britain, (11) and that the UK has recently engaged in numerous military adventures overseas, it was always only a matter of time before ECHR applicability would gradually be extended by the Strasbourg Court (the European Court of Human Rights, or ECtHR) to include such operations. (12) Soon afterwards, the ECHR Article 2 'right to life', specifically, of service personnel deployed on active duty overseas, was expressly acknowledged by Britain's highest court--the UK Supreme Court--in 2013, in Smith & Ors. …

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