PM and defence secretary will announce idea for future conflicts to curb an ‘industry of vexatious claims’ against soldiers

Controversial plans for the military to opt out from the European convention on human rights (ECHR) during future conflicts will be introduced by ministers, to see off what the prime minister described as an “industry of vexatious claims” against soldiers.



The long-mooted idea will be announced on Tuesday at the Conservative party conference by Theresa May and the defence secretary, Michael Fallon, although it was immediately criticised by human rights groups who said it was based on a false narrative of spurious lawsuits.

May said the change would “put an end to the industry of vexatious claims that has pursued those who served in previous conflicts”. It would be implemented by introducing a “presumption to derogate” from the ECHR in warfare.

Fallon, in comments released ahead of his conference speech, said: “Our legal system has been abused to level false charges against our troops on an industrial scale.”

He added: “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.”

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The military and some right-leaning thinktanks have long pushed for the move, arguing that a series of court cases focused on the actions of UK troops in Iraq and Afghanistan has cost the Ministry of Defence (MoD) huge sums.



The government says the litigation has cost the MoD more than £100m since 2004. Ministers say this has happened because the jurisdiction of the ECHR has been extended to conflict zones, in part due to the efforts of a handful of law firms.

Derogating from the ECHR in times of war or public emergency is permitted under the rules of the Council of Europe, which oversees the Strasbourg-based institution.



Certain key convention rights – such as the prohibition against torture – nonetheless remain in place even if the secretary general of the Council of Europe has been informed in advance of a temporary derogation.

The UK is not the first nation to take this step. Ukraine gave notice of a derogation in June 2015, in relation to the fighting on its border with Russia. France signalled it would derogate in the immediate aftermath of the jihadist massacres at the Bataclan nightclub in Paris last November. Turkey lodged a similar notice following the failed military coup in July.

The UK has also previously notified the Council of Europe of a succession of temporary derogations in relation to the Troubles in Northern Ireland during the 1970s.



The government has already lodged complaints with the Solicitors Regulation Authority (SRA) against two law firms, Leigh Day and Public Interest Lawyers, for the way in which they pursued actions against the MoD and soldiers who fought in Iraq and Afghanistan.

Facebook Twitter Pinterest The Liberty director, Martha Spurrier, said the derogation plans would make Britain appear a hypocrite internationally. Photograph: David Levene/The Guardian

However, Martha Spurrier, the director of Liberty, argued that the majority of rights claims against the military were not vexatious, and were connected to protections which could not be derogated, such as prohibition of torture.

“The MoD has been forced to settle hundreds of cases of abuse, which speaks to mistreatment on the battlefield that we should be trying to eradicate, not permit,” she said.

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Derogation could only happen during war or public emergencies that threaten the life of the nation, Spurrier said, adding: “There is a dark irony in our government proposing derogation in wars of its choosing, even though many of those conflicts, like in Iraq and Afghanistan, are fought ostensibly in the name of human rights.

“The truth is that derogation will protect no one except those at the MoD with something to hide. It will make us hypocrites on the international stage and embolden our enemies to capitalise on our double standards.

“If ministers held our troops in the high regard they claim, they would not do them the disrespect of implying they can’t abide by human rights standards. For a supposedly civilised nation, this is a pernicious and retrograde step.”

Writing in the Guardian on Monday, Rev Nicholas Mercer, formerly a lieutenant colonel and senior legal military adviser to the 1st Armoured Division during the Iraq war, attacked the government for inventing an “orchestrated narrative”.

“The idea that the claims are largely spurious is nonsense,” he wrote. “The Ministry of Defence has already paid out £20m in compensation to victims of abuse in Iraq. This is for a total of 326 cases, which by anyone’s reckoning is a lot of money and a shocking amount of abuse. Anyone who has been involved in litigation with the MoD knows that it will pay up only if a case is overwhelming or the ministry wants to cover something up.”

The Law Society, which represents solicitors in England and Wales, has also accused the government of attempting to undermine the rule of law by intimidating solicitors who pursue legitimate cases.

Its president, Robert Bourns, said last month: “Lawyers must not be hindered or intimidated in carrying out their professional duties and acting in the best interests of their clients within the law. They should not be identified with their clients or clients’ cases. This principle is set out in the United Nations basic principles on the role of lawyers.”