Reports tonight (3 Oct) that the Government intends to derogate from the European Convention of Human Rights (ECHR) have been greeted with some relief, given the extent to which the rights conferred by the Convention now appear to have been abused.
"Derogation" would mean a limited opt out from specified parts of the Convention in respect of specified activities, such as an overseas operation. A "blanket" derogation from the whole of the Convention is not possible, therefore derogation would not eliminate the possibility of vexatious claims.
The announcement does not affect the ongoing IHAT and Northmoor inquiries.
Some of us in BAFF originally felt there could be a case for service personnel or their families to be able to sue for negligence in very limited circumstances, such as in established British bases, and possibly over avoidable failures to equip (such as holding back an order for enhanced body armour for political reasons) but never for events on the battlefield.
The other view represented within BAFF, which is now the view of the Government, is that it is safer to prevent (or at least minimise) the application of the ECHR to anything connected with operational deployment.
BAFF warned about the IHAT exercise from the start. We should have done so with a louder voice, and we should have been allowed to have a louder voice.
More recently we took practical steps, widening the "free pro bono professional legal representation" BAFF member offer to include free basic legal advice to anyone approached by IHAT for a statement, even if not under caution.
The fact is that Ministers, Generals and senior civil servants failed to protect service personnel and veterans from years of vexatious, vindictive allegations. A stronger, independent representative armed forces federation operating within sensible rules, as BAFF does, would have made a real difference for the better.
The need is all the greater now for an active independent BAFF to ensure that the troops' interests are genuinely protected in any changes, and not used as an dogwhistle excuse for the establishment suiting its own convenience. Derogation from the Convention is not a magic formula.
- The Ministry of Defence has now (4 Oct) published a news story about this, including quotes from the Prime Minister and the Secretary of State: https://www.gov.uk/government/news/government-to-protect-armed-forces-from-persistent-legal-claims-in-future-overseas-operations . More detail and analysis is awaited. The statement, although not the politicians' quotes, appears to accept that derogation may not always be possible.
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