Dangerous and incoherent: Liberty condemns Government plan to cover up its own failings by removing human rights protections for troops and civilians

04 October 2016

The Government has today announced it intends to create a ‘presumption of derogation’ from the European Convention on Human Rights (ECHR) in future conflicts – a move that would leave both UK soldiers and foreign civilians at risk of human rights abuses.

The European Convention is the fundamental, effective safeguard against the abuses of power which can occur during wartime. It protects those who serve in the UK’s military from neglect or abuse at the hands of the Ministry of Defence (MoD) – and requires our soldiers to respect the rights of others.

The ECHR arose from the horrors of the Second World War. Its drafters – many of them Conservative British lawyers – wanted strong safeguards in both peacetime and armed conflict. They crafted a principled, operational framework ensuring our soldiers do their difficult job while upholding the values of democracy and the rule of law.

Our Armed Forces deserve the best protection and support from the state – but over the course of the conflicts in Iraq and Afghanistan, the MoD has repeatedly failed to provide this. Many former soldiers and bereaved families of troops have used the ECHR – enshrined in UK law in the Human Rights Act – to hold the MoD to account for serious failings and force them to better protect soldiers.

Like so much political posturing on human rights, the basis for this regressive policy is hot air rather than hard facts. The MoD has settled hundreds of strong abuse claims, paying millions to survivors. Victims deserve justice, but this announcement risks abuse being covered up.

Dangerous and retrograde

The ECHR states that countries can temporarily ‘derogate’, or opt out, from the Convention “in time of war or other public emergency threatening the life of the nation”. Such a step is open to the Government if it is necessary in the future – but it is not necessary now. 

Martha Spurrier, Director of Liberty, said: “The Government cannot be allowed to leave its human rights commitments at our borders. Doing so will leave abuse victims unprotected and our troops powerless when the state fails to keep them safe from harm.

“The Convention on Human Rights isn’t just a document whose origins lie in the brutal lessons of 20th century wars. It is directly relevant today. Our Government has a duty not only to implement it during its own military operations, but to uphold its standards as an example to others – both friends and foes. 

“To save the Ministry of Defence from the shame of having to admit that civilians suffered abuse on its watch, ministers are prepared to rob our soldiers of this sensible legal framework that both clarifies their use of force and offers them redress when their own rights are breached. For a supposedly civilised nation, this is a pernicious and retrograde step that will embolden our enemies and alienate our allies.”

Des James, father of Private Cheryl James, who died at Deepcut Barracks in 1995, said:

“Politicians have vilified lawyers and now call for the Armed Forces to be exempt from human rights laws when overseas.

“The Government has a short memory. It is ignoring the many servicemen and women and their families – like mine – who have used the ECHR to hold the Ministry of Defence to account when it has failed to meet the standards we rightly expect and deserve, often with shattering consequences.

“The Convention – and the Human Rights Act which enforces it in the UK – is an essential protection for military families seeking the truth when the Government is trying to cover up its failings at any cost. It was the tool that let me force authorities to release evidence that secured the wide-ranging inquest into the death of my daughter Cheryl at Deepcut Barracks.

“Our troops need human rights protections just as much as everyone else – we must not let politicians scrap legislation that has proved so crucial for so many people.”

Grave consequences

If the Government pursues the plan announced today, it will:

  • Leave the rights of those who serve the UK overseas unprotected. Far from stopping troops protecting themselves in the heat of battle, the ECHR clarifies and codifies the military’s use of lethal force and detention in ways the Army itself seeks to honour.

As the cases of the Snatch Land Rover soldiers, Corporal Anne-Marie Ellement and many others demonstrate, soldiers need and deserve the full protection of human rights law wherever they serve.

  • Allow the Ministry of Defence to pass the buck for its grave failings and leave the rights of civilians under the control of our Armed Forces unprotected. As shown by the horrifying case of Baha Mousa, and the hundreds of cases the MoD has settled since, human rights safeguards are crucial in times of conflict, despite the vast majority of soldiers’ best intentions.

While it is impossible to derogate from the prohibition on torture and inhuman and degrading treatment, this proposal would lead to legal black holes – particularly with regard to detention – and this is the road to Guantanamo Bay.

  • Damage the reputation of the UK and its military across the world, sending the signal that the UK will ignore rights for political convenience. The protection of human rights overseas is fundamental to distinguishing the UK military overseas.

It is a key component of the military’s sense of integrity, honour and self-respect that it conducts its operations to the highest legal standards. The UK’s continued commitment to the importance of human rights law in conflict is crucial to force other Governments to do the same.


Contact: Liberty press office on 0207 378 3656 / 07973 831 128 and pressoffice@liberty-human-rights.org.uk.

Liberty’s briefing on the Human Rights Act and Armed Forces can be found here.