Government plans to opt out of international human rights agreements in future conflicts would be dangerous and prevent British soldiers from obtaining justice, according to evidence submitted to a parliamentary inquiry by the Law Society and Liberty.



The proposal to temporarily suspend enforcement of the European convention on human rights (ECHR) in the next war would only protect the Ministry of Defence from scrutiny in the courts and damage the UK’s international reputation, the two organisations have told the joint committee on human rights (JCHR).

The president of the Law Society, Robert Bourns, said: “The proposal to opt out of an international human rights agreement to prevent false legal claims is not only disproportionate, it is dangerous.



“This could stop genuine claims ever being heard and would undermine hard-won international accords that protect our most fundamental shared values. Even claims for negligence brought by our own armed forces against the Ministry of Defence, for instance for providing inadequate equipment, could be blocked.



“In no other area of law would it even be considered that all cases be shut down in order to prevent false claims or save money. It is the role of the justice system to determine the merit of each case, a function that is and must remain separate from government.”

The last time the United Kingdom derogated from the convention, as the process is formally known, was in December 2001 in the aftermath of the September 11 attacks. It allowed the UK to arrest and detain terrorist suspects for longer periods prior to deportation.

Both France - following multiple terror attacks, and Turkey - after the 2016 failed coup - have recently lodged derogation notices with the Council of Europe in Strasbourg, which oversees the ECHR. States can opt out of some human rights safeguards as an emergency measure for a short period, but not fundamental rights such as the ban on torture and the right to life.

The MoD’s pre-emptive initiative, announcing the conditions for future derogations, has drawn sharp criticism from a wide spectrum of civil rights and legal groups. It has prompted the JCHR to hold an inquiry into the legality and effect of the proposal.



In a separate move, the defence secretary, Michael Fallon, proposes to extend combat immunity, shielding soldiers and the MoD from as much legal action as possible and preventing negligence claims going to court.

The record of the Iraq historic allegations team (Ihat) inquiry and the misconduct of the solicitor Phil Shiner, who brought many now abandoned claims against the MoD, have convinced the department that legal challenges are frequently ill-founded and vexatious.

Successive cases at the European court of human rights in Strasbourg have established the precedent that human rights protections can operate when armed forces are operating overseas, far beyond the borders of Europe. That enlargement has alarmed the MoD.



In its evidence, the Law Society, which represents solicitors in England and Wales, says there is little evidence to support the government’s view that the legal system has been abused “on an industrial scale”.

It also points out that the MoD has paid out tens of millions of pounds in compensation in hundreds of cases to Iraqi and Afghan nationals for mistreatment by the armed forces. “This is compelling evidence that the MoD has accepted the merit of these cases,” it said.



Liberty has similar misgivings. It urges that “laws must not be silenced by war”. It believes that under the guise of protecting troops, the MoD is seeking only to protect itself. The government’s proposalswould prohibit civilians, soldiers and their families from seeking truth and justice in an independent court when they or their loved ones suffer injury or death, it says.









Martha Spurrier, the director of Liberty, said: “The government is attempting a reckless confidence trick, using smoke and mirrors to shirk their human rights obligations and insulate themselves from scrutiny. We must not let them get away with it.

“We urge the JCHR to look at the evidence and expose this for what it is – a nakedly self-serving, dangerous plan that would shut down any critical examination of the Ministry of Defence and deprive soldiers and civilians of justice.”

Launching the JCHR inquiry, its chair, Harriet Harman MP, said: “Derogating from the UK’s international human rights obligations is a very serious matter which calls for the most careful scrutiny by parliament.



“The last time the UK derogated from the ECHR, in the wake of 9/11, the derogation received little parliamentary scrutiny and was later found to be incompatible with the ECHR by both the UK’s highest court and the European court of human rights. This time, the government’s case for intending to derogate rests on a number of assertions which need to be rigorously tested.”

Fallon announced the policy at the Conservative party conference last year. “Our legal system has been abused to level false charges against our troops on an industrial scale,” he said. “It has caused significant distress to people who risked their lives to protect us, it has cost the taxpayer millions and there is a real risk it will stop our armed forces doing their job.”