The European Convention on Human Rights (ECHR) is an international treaty with 47 signatories designed to protect human rights and political freedoms. It was incorporated into UK law under the Human Rights Act (HRA) in 1998, bringing the UK under the jurisdiction of the European Court of Human Rights (ECtHR).
The Law of Armed Conflict (LOAC) refers to a set of rules which seek, for humanitarian reasons, to limit the effects of armed conflict. The LOAC does not grant authority to the ECtHR.
In 2016, the previous government announced its intention to prevent the ECHR leading to what it called “false charges against our troops on an industrial scale”. The argument made by ministers was that an industry had sprung up to pursue “vexatious claims” against soldiers and that the way to prevent this was to “derogate” from (not conform to) certain articles in the ECHR.
This policy promises to follow through on the proposed “presumption to derogate” announced by the previous government.
As things stand the UK is still bound by the requirements of the ECHR. Prior to June 2017, the Joint Committee on Human Rights was conducting an inquiry into the proposed derogation, but it was not reconvened following the election. Several submissions to the inquiry challenged the legal basis and viability of the proposal.
An additional hurdle to implementation is that the EU has indicated that any security cooperation following Brexit is conditional on the UK remaining under ECtHR jurisdiction.
As with many policies, the outcome of Brexit negotiations is likely to impact on fulfilment of this pledge. For now, we’re marking it as ‘in progress’ rather than ‘not started’ because derogation is only required during an armed conflict, and also due to the ongoing Brexit negotiations. We’ll be monitoring the outcome of those negotiations and their impact on the UK’s relationship to the ECHR. Follow this policy for updates.
Don’t derogate from your duty to the details
- European Convention on Human Rights – Council of Europe
- Human Rights Act 1998 – Gov.uk
- European Court of Human Rights – Council of Europe
- What is International Humanitarian Law? – International Committee of the Red Cross
- Government to protect Armed Forces from persistent legal claims in future overseas operations – Gov.uk
- UK troops to be protected from ‘spurious legal claims’ – BBC News
- The Government’s proposed derogation from the ECHR inquiry – Joint Committee on Human Rights – Parliament.uk
- Derogation in time of emergency – European Court of Human Rights
- UK-EU security cooperation after Brexit: Follow-up report – Parliament.uk
- Liberty’s Written Evidence to the Joint Committee on Human Rights’ Inquiry into the Government’s Proposed Derogation from the ECHR – Liberty