News focus: ECHR comes under Tory fire

The lord chancellor’s indifferent performance before the Commons justice select committee recently prompted speculation that she was minded to abandon Michael Gove’s much-heralded prison reforms.

At last week’s Conservative Party conference, Liz Truss stressed that they remain a priority, making an eyecatching pledge to increase the number of former armed forces personnel becoming prison officers.

Her keynote speech was otherwise thin on policy. She took a well-received swipe at lack of diversity in the legal profession – in particular the Supreme Court – but did not offer any new headline initiatives to address it.

A bill of rights remains indefinitely delayed, though former justice minister Lord Faulks offered some insight into the government’s thinking at a fringe event. The UK’s new bill of rights will eliminate ‘trivial’ claims, he insisted, calling for balance and common sense to be restored to the way human rights are protected.

He added: ‘There’s been an accumulation of case law, a whole school of lawyers has now been brought up in a rights culture, and the general population – at least some of them –think that the Human Rights Act is a vital tool in protecting people’s rights.

‘This makes it politically difficult for us simply to throw away the Human Rights Act, to repeal it, to abandon our connection with the Council of Europe, and to go back as it were to pre-1997, much though I would like that to be the case.’

The real action was elsewhere, of course, with sympathetic newspapers splashing across their front pages Theresa May’s reheated pledge to end the ‘industry of vexatious claims’ against service personnel.

Plans to introduce a presumption of derogation from parts of the European Convention on Human Rights in future conflicts overseas met with a predictably furious response from rights campaigners.

The government says that claims that ECHR rights have been breached drive much of the litigation that the Ministry of Defence faces, causing considerable personal distress to individual servicemen and servicewomen, and costing taxpayers millions of pounds.

Defence secretary Michael Fallon (pictured) said the change will help to ‘protect our troops from vexatious claims and ensure they can confidently take difficult decisions on the battlefield’.

A statement added that the announcement ‘will complement the work being undertaken by the government to draw up a time limit for future claims, create tough new penalties for firms who engage in vexatious practices and crack down on the “no win, no fee” deals that have been exploited to tout for business’.

The Law Society warned that derogation could risk removing legitimate rights – including from soldiers.

President Robert Bourns said: ‘The Society condemns vexatious claims and will work with government and the legal profession to eradicate the small number of inappropriate claims. [But] the government’s proposal to derogate from the ECHR risks preventing genuine claims, which might include those brought by UK armed forces against the Ministry of Defence. It is the role of the justice system to determine the validity of claims, a function that is and must remain separate from government.’

Former attorney general Dominic Grieve QC also voiced serious reservations, warning at a fringe event that temporary derogation will not in fact free soldiers from the threat of litigation.

While acknowledging that claims of ill treatment ‘may be largely spurious’, Grieve, MP for Beaconsfield, said such claims still needed to be investigated as they are also criminal offences under the Queen’s regulations, and court martial and military law.

He added: ‘They’re a breach of international humanitarian law – the Geneva conventions. And we are under a duty to look at it. And in that sense the ECHR does not really add anything to the burden that it places on us in terms of carrying out proper investigations of such complaints.’

Grieve agreed it was ‘deplorable’ if some solicitors’ firms have been ‘abusing their professional status in order to facilitate such claims’.

But though ‘there appears to have been some evidence that this has happened in one case’, he said he would be ‘wary of extending that complaint elsewhere’.

For Grieve, the derogation announcement is not a revolutionary step: ‘The derogation mechanism provided for within the convention, should be used very sparingly, and in my judgement it’s not going to make a substantial difference to the number of claims actually brought.’

Elsewhere, justice minister Sir Oliver Heald told another fringe event that alternative dispute resolution will help promote the legal sector internationally as the UK prepares to leave the EU.

London is already a ‘world-leading centre’ for arbitration, he stressed, adding:  ‘As we leave the EU, it will be important that the legal sector… is looking at opportunities to forward its business across the world. I think there’s no question that ADR will form part of that, as it does in our internal domestic civil justice system.’

Noting that pre-action protocols have already led to the use of ADR in many cases, Heald pointed out that it is also possible for adverse costs orders to be made in court proceedings if ADR has not been considered.

Alluding to comments made by Lord Justice Briggs at a mediation symposium last month, Heald said: ‘I think it’s a very fair statement to say we’re trying to take the “A” out of “ADR” and have a system of dispute resolution that includes the courts, of course, but perhaps as the first recourse the idea that people might resolve their disputes using processes such as mediation and consultation, and arbitration.’

Digitisation of the court system provides an opportunity to explain conciliation and mediation options as people file their case, Heald said.

However, he acknowledged that the courts will provide a better forum for certain cases.

He said: ‘You see the kind of complex, commercial cases you get at the Rolls Building, which is very well prepared to do [them]. The fact that you get an outcome with teeth, the ability to use a High Court judge to deal with a case – that can be an advantage.’