Dominic Raab has pledged to protect UK Armed Forces from human rights claims over campaigns they mount abroad.

In a consultation document on his new British bill of rights, Mr Raab, the Justice Secretary and Deputy Prime Minister, said he would work with the Strasbourg court and EU leaders to end costly legal actions against military deployments overseas.

Military chiefs have warned that the threat of human rights compensation claims hampers their ability to operate overseas and is an unnecessary distraction when military action is already covered by the Geneva Convention, which provides for protections for civilians in warzones.

It follows a series of high-profile cases by civilians and soldiers involved in the Iraq war that ruled the European Convention on Human Rights (ECHR) extended to overseas armed conflict, even though ministers say this was never the intention of the architects of the ECHR.

“The extension of human rights law to armed conflict has resulted in the actions of our Armed Forces being subject to increasing legal challenge,” said the consultation document. “This has in turn created considerable legal and therefore operational uncertainties for our Armed Forces.”

The Human Rights Act 1998 was enacted to give further domestic effect to the protections in the European Convention on Human Rights.

Critical of Convention

In an article for The Telegraph, Lord Sumption, a former supreme court judge, criticised the way the ECHR had expanded its reach including into war zones.

“Article 1, which applies the Convention to people within each state’s jurisdiction, has been expanded to apply in war zones on the other side of the world, with serious consequences for the conduct of military operations,” he said. 

“At one point it was suggested that soldiers could kill an armed enemy, but not take him prisoner, because that would conflict with an article designed for the arrest of pickpockets in the Walworth Road or a Paris flea market.”

Mr Raab has accepted that the UK cannot unilaterally legislate to counter it, as this would open up Britain to legal actions under the Convention.

“We want to protect our armed forces from human rights claims for actions taking place overseas, and avoid the uncertainty of applying different rules in an area already covered by the law of armed conflict,” said the consultation. 

“Therefore, our proposals also explore how we can seek to address with partners in Strasbourg the question of the extraterritorial application of the Convention.”

Unveiling the consultation on Tuesday, Mr Raab said the proposed bill would allow the Government to deport more foreign criminals, prevent “spurious or unmeritorious claims”, reinforce the “quintessentially British right” of freedom of speech and ensure Parliament has the “last word on the laws of this land”.

Subject to abuse

Setting out how the Government will address concerns that the Convention has been “subject to abuse”, Mr Raab said the plans will prevent criminals relying on Article 8 – the right to family life – to “frustrate their deportation from this country.”

Such claims make up “around 70 per cent” of all successful human rights challenges by foreign national offenders against deportation orders, he said, adding: “Our proposals would enable us to legislate to curtail that abuse of the system.”

Discussing how the proposals will reinforce the weight given to freedom of speech, he said this was a “quintessentially British right”, adding: “But one which we have seen eroded of late by a combination of case law introducing continental-style privacy rules and the incremental narrowing of the scope for respectful but rambunctious debate in politically sensitive areas, something we in this House should resist, both on principle but also in the interests of effective decision-making that only comes from a full airing of contrary views.

“Freedom of speech does sometimes mean the freedom to say things which others may not wish to hear.”

‘This is not about abolishing human rights – it’s about re-enacting them’

By Lord Sumption

The government’s plan to reform the Human Rights Act provoked predictable howls of protest even before its contents were known. 

But the protection of human rights is an important subject. It should not be left to hype and sloganeering. 

These proposals have emerged from an independent panel chaired by Sir Peter Gross, a recently retired Court of Appeal judge.

They deserve a respectful hearing.

Neither the Gross panel nor the government is proposing to abolish human rights. The idea is to re-enact the same rights as a domestic British statute. 

The target is not the rights themselves, but the European Court of Human Rights in Strasbourg, which is the international court responsible for interpreting them. 

The essence of what is proposed is that the task of interpretation should be conferred exclusively on the British courts, who should treat the language as their primary source and be free to disregard Strasbourg’s decisions.

This is a response to a real problem, which the Strasbourg Court has brought upon itself. 

International conventions are normally interpreted by examining the language which states have agreed to be bound by. 

The language of the Convention itself protects rights most of which have been part of British domestic law for many years.

The ‘living instrument’ principle

But since the 1970s, the Strasbourg court has developed what it calls the “living instrument” principle. 

The principle is that the Court is not limited to the language of the Convention or even to what is necessarily implied in it. 

On this basis it has fashioned new rights which are not in the Convention but which it believes to be in the same spirit and required by the times. 

Many of them are highly controversial. 

Article 8, which was designed to protect private and family life, is the most notorious example of this mission creep. 

In the hands of the Strasbourg judges, it has been expanded to embrace anything that impacts on an individual’s autonomy and personal development, from immigration and deportation to the policing of demonstrations, educational policy or environmental and planning rules. 

Article 1, which applies the Convention to people within each state’s jurisdiction, has been expanded to apply in war zones on the other side of the world, with serious consequences for the conduct of military operations. 

At one point it was suggested that soldiers could kill an armed enemy, but not take him prisoner, because that would conflict with an article designed for the arrest of pickpockets in the Walworth Road or a Paris flea market.

These are political issues on which citizens differ. In a democracy, they are entitled to have their differences resolved by their elected representatives. 

We can all accept that updating human rights law is an important and necessary task. But it is a task for legislators, not judges. 

The judicial creation of new rights and the imposition of corresponding duties which have not been adopted by an elected legislature, into which the public has no input, and which are for practical purposes incapable of amendment or repeal is a grave constitutional anomaly. 

There are many practical problems about the Gross proposals, but its basic objective should command the respect of every democrat.