Lawfare and the Judicialisation of War in the Conservative Party Manifesto

May 20, 2017

The Conservative Party Manifesto, which was published yesterday, sets out an ambitious agenda in response to the problem of judicialisation of war.  The Manifesto proposes reforms that will address the extension of European human rights law, affirm the priority of the Law of Armed Conflict, limit opportunities for lawfare against British armed forces, and secure the interests of soldiers and their families.

The problem of judicialisation of war and lawfare was first brought to public attention by Policy Exchange in two landmark papers, Fog of Law and Clearing the Fog of Law.  The Secretary of State for Defence, the Rt Hon Sir Michael Fallon, has noted the significance of our work in this domain, as have members of the House of Lords, including former Supreme Court Justices and former Chiefs of Defence Staff.

Central to the problem is the 2011 decision of the European Court of Human Rights to extend radically the reach of the European Convention on Human Rights (ECHR) to military action abroad.  The Court’s decision effectively – and retrospectively – displaced the Law of Armed Conflict, which had otherwise been thought the appropriate legal regime.  This extraordinary decision spurred thousands of lawsuits in English courts, and multiple inquires, alleging that British soldiers had breached European human rights law.

In holding that European human rights law applies to military action abroad, the domestic courts have loyally followed the Strasbourg Court’s lead, albeit with some misgivings.  However, domestic courts have at times themselves exacerbated the wider problem, most notably in abandoning the common law of combat immunity and permitting lawsuits against the Government for negligence in relation to deaths in combat.

The Conservative Party’s 2015 Manifesto included a welcome but relatively unspecific commitment to ensuring that “our Armed Forces overseas are not subject to persistent human rights claims that undermine their ability to do their job”.  In late 2016, the Government seemed to commit to derogating from the ECHR in advance of future conflicts and in early 2017 the Government began to bring the Iraq Historic Investigations Team (IHAT) to an end.

The 2017 Manifesto includes a much more specific commitment to protecting armed forces personnel from the misuse of law.  It says expressly that “British troops will in future be subject to the Law of Armed Conflict, which includes the Geneva Convention and UK Service Law, not the European Court of Human Rights”.  The Manifesto also commits to frustrate action by unscrupulous law firms and promises that a Conservative Government “will introduce better compensation for injured armed forces personnel and the families of those killed in combat.”

This specificity in relation to the legal framework that should govern armed action is striking – and welcome.  It is entirely sensible that British military action abroad should be framed by the Law of Armed Conflict rather than European human rights law.  This Manifesto commitment directly echoes the recommendations first made in our major reports and in associated media commentary, as well as in our evidence to the Defence Select Committee, on which the relevant sub-committee relied in recommending the closure of IHAT.

The Manifesto does not spell out the means by which the jurisdiction of the European Court of Human Rights is effectively to be displaced, but the obvious means to this end are some combination of derogation from the ECHR, amendment of the Human Rights Act 1998 and/or principled defiance of the Court’s rulings.  Policy Exchange has recommended all three of these options and this Manifesto commitment will greatly strengthen the hand of a new Conservative Government in rolling back the judicialisation of war, especially in the event that there is opposition to these measures in the House of Lords.

The plan for better compensation for injuries or deaths in combat follows directly from our recommendations.  This is a justified quid pro quo for a limitation that is not expressly mentioned in the Manifesto but which ought to be reinstated by whoever forms the next Government, namely barring negligence lawsuits in relation to deaths in combat.  It is not wise or just to invite or require ordinary courts to second-guess military decisions after the fact.

This is an ambitious reform agenda and it will be controversial.  If and when the next Government exercises Article 15 and derogates from the ECHR, the derogation will be challenged in domestic and European courts.  Parliament should consider legislating to prevent domestic courts from ruling that derogation is unlawful.  Parliament should also amend the Human Rights Act to limit its territorial scope, reinstating the limited scope that senior British judges assumed the Act had until only a few years ago.  The Conservative Manifesto commits to not repealing the Act while Brexit is underway.  However, this is consistent with amending the Act’s reach and ending the thousands of lawsuits against the military.

Military action is only one domain in which courts, domestic and foreign, are unsettling established legal norms, introducing the vagaries of European human rights law and abandoning traditional common law discipline.  The consequences for national security, and the interests of service personnel, rightly make this a cause for much concern.  It is encouraging to see serious proposals to push back against this instance of the expansion of judicial power, but of course much work remains yet to be done.

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