Clause 14 of the Bill of Rights Bill, currently progressing through the UK parliament, introduces a total ban on individuals bringing a human rights claim, or relying on a Convention right, in relation to overseas military operations. As I have argued elsewhere, this is a retrograde development in the law. Thankfully, the clause may never enter into force. This is because under clause 39(3) of the Bill the Secretary of State may only bring clause 14 into force if the Secretary of State “is satisfied (whether on the basis of provision contained in an Act passed after this Act or otherwise) that doing so is consistent with the United Kingdom’s obligations under the Convention”. There is an implicit recognition here that, in its current form, implementing clause 14 would not be compatible with the UK’s ECHR obligations and that it would need something else to happen to make it compatible. There are three possible options here.
The first is for there to be a change in the UK’s obligations through ECtHR jurisprudence that further constrains the application of the European Convention to extra-territorial military operations. We are arguably much closer to the position in the Bill following the Georgia v Russia (II) case (see a critique of the case here), which restricts the application of the ECHR during “active hostilities”. However, clause 14 covers a wider range of conduct than just “active hostilities”. Military operations are defined in the bill as “where Her Majesty’s forces are under attack or face the threat of attack or violent resistance” [clause 14(6)(a)] and there are many other contexts besides active hostilities where this could occur, e.g. the explanatory note to the legislation specifically mentions ordering drone strikes as coming within the scope of the exclusion. Thus, unless there is a significant change in ECtHR jurisprudence, the legislation could not come into force because the legislation creates a wider exclusion than that which exists under the current law.
The second possibility is that the UK negotiates an additional protocol to the ECHR which changes its obligations during overseas military operations. This idea was mooted by the Independent Human Rights Act Review panel, which considered how the HRA should be amended, as a response to concerns over the HRA’s extra-territorial application. The IHRAR panel advocated creating
“a careful, clarificatory, reform of the Convention […] to develop a new Protocol to the Convention, setting out a clear, logically coherent, well thought out approach to its territorial and temporal scope, together with the Convention’s relationship with IHL”
Yet, even when there is widespread recognition of the need for reform within the Convention system and diplomatic will to achieve it, the process of reforming the Convention has usually involved multiple inter-governmental conferences (Interlaken, Izmir, Brighton, Oslo, Brussels, Copenhagen) over many years.
It would be challenging to get all contracting States to agree to the content of the proposed protocol. Leaving aside the technical difficulty of the subject matter, it’s simply not an issue for many contracting States who do not participate in extra-territorial military operations. There are, for example, several neutral countries in the Council of Europe, including Ireland, Austria and Switzerland. The protocol may also be perceived, perhaps with good reason, as an attempt to weaken accountability for abuses by the military forces of powerful States. This observation was made by the Northern Ireland Human Rights Commission during consultations with the IHRAR. In the wider context of the current situation in Ukraine, it is unlikely that moves to weaken avenues of accountability during military operations would be successful. As such, negotiations on a protocol are unlikely to get anywhere in the near future, closing off this option.
Which leaves option 3, mentioned in the explanatory note to the legislation, the adoption of “later legislation” which will “bring forward alternative remedies to maintain compatibility with the Convention and ensure there is a route to remedy”. In its current form, clause 14 is arguably incompatible with the ECHR because under Article 13 of the ECHR the UK must ensure that an effective remedy for all violations of the Convention is available before a national authority. As clause 14 would prevent access to domestic courts for arguable violations, effective remedies for violations during overseas operations will be removed and will need to be replaced. It is unclear what this legislation providing a route to remedy would be and how it would function. Under the HRA, a court can grant “any remedy which is within its normal powers to grant”, which includes judicial review style remedies (e.g. quashing decisions), declarations of incompatibility and damages. It is quite a wide range of remedial avenues. What the UK replaces this with in the context of an overseas military operation is anyone’s guess. However, we can safely say that creating and implementing a parallel system of remedies that would satisfy Article 13’s requirements will not be straightforward. If the intention is for these “routes to remedy” to also be sealed off from the domestic legal system, as the legislature attempted to do with the Investigatory Powers Tribunal or the Foreign Compensation Commission, such moves have not been favourably received by the judiciary in the past (see the Privacy International case and Anisminic)
The level of conditionality attached to clause 14 makes it little more than a declaration of intent to change the law. In a system as beholden to parliamentary sovereignty as the UK’s, the declaration is hardly worth the paper it’s printed on. Thankfully there are a range of barriers between this clause and the sunlit uplands of enforceable law. Leaving aside the political machinations of getting the legislation onto the new Conservative party leader’s to do list, there are other legal barriers too. Clause 39(3) specifically refers to provisions “contained in an Act passed after this Act”. This means further primary legislation is envisaged to address the remedy problem, which will mean further rounds of parliamentary scrutiny and the possibility to counteract the more damaging elements of clause 14. Secondly, the commencement of clause 14 would be achieved via secondary legislation. As the Secretary of State must decide that he is satisfied that clause 14 is consistent with the United Kingdom’s obligations under the Convention, that decision could be reviewed, creating an opportunity for litigation, which would be a beefy constitutional showdown. The right of victims of human rights violations during overseas military operations to bring cases to British courts appears far from finished and access to justice remains secure, for now.
Stuart Wallace, Associate Professor, University of Leeds
(Suggested citation: S. Wallace, ‘Human Rights Claims and Overseas Military Operations: Will Clause 14 of the Bill of Rights Bill Really Limit Victims’ Access to British Courts?’, U.K. Const. L. Blog (6th September 2022) (available at https://ukconstitutionallaw.org/))