The Government’s Independent Review of the Human Rights Act Contents

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6Extra-territorial effect of the Human Rights Act

155.Within the second theme of the IHRAR (“The impact of the HRA on the relationship between the judiciary, the executive and the legislature”) appears a specific question relating to the application of the HRA to acts of public authorities taking place outside the territory of the UK. This is often referred to as the ‘extra-territorial effect’ of the Human Rights Act.134

156.The extra-territorial effect of the rights protected under the HRA has proved to be contentious. It has come into particular focus in the context of military conduct overseas. Judicial interventions in this area have been controversial, as they have highlighted political and legal tensions between human rights law and international humanitarian law (i.e. the legal framework applicable to situations of armed conflict and occupation). The Overseas Operations Bill 2019–2021, which focused on narrowing the legal responsibility of the UK and/or UK personnel for wrongful acts committed overseas and which included changes affecting time limits in HRA claims, received royal assent only after compromises were made in the face of significant objections to the Bill.135 The question posed by IHRAR is whether the current law on ‘extra territoriality’ means there is a case for change to the HRA?

157.To consider this question, it is important to first review:

a)Territorial jurisdiction under the HRA; and

b)Territorial jurisdiction under the ECHR.

Territorial jurisdiction under the HRA

158.It is a general principle of statutory interpretation that “Unless the contrary intention appears, Parliament is taken to intend an Act to extend to each territory of the United Kingdom but not to any territory outside the United Kingdom”.136

159.However, in the case of R (Al-Skeini) v Secretary of State for Defence the House of Lords confirmed that the territorial effect of the Human Rights Act 1998 should be interpreted as being consistent with the territorial effect of the ECHR.137 Since the HRA was intended “to provide a remedial structure in domestic law for the rights guaranteed by the Convention”–i.e. to allow claimants to obtain remedies in domestic courts rather than having to go to Strasbourg–then the UK’s jurisdiction under the Act must be consistent with the UK’s jurisdiction under the Convention. To interpret otherwise would leave a category of victim under the Convention unable to obtain a remedy in the UK and would put the UK in breach of its obligation to provide an effective remedy under Article 13 ECHR.138

160.This decision confirmed that the section 6 HRA obligation on all public authorities to act compatibly with Convention rights applied not only within the physical territory of the UK, but also when the public authority was taking action outside the physical territory of the UK but still deemed to be legally responsible for the purposes of the ECHR. While Parliament could theoretically legislate to detach the HRA from the ECHR in terms of jurisdiction this would not affect the responsibility of the UK under the Convention. The UK would remain responsible in international law and any victim would still be able to seek redress in the ECtHR.

161.This means that to determine jurisdiction under the HRA the key question is whether the UK would bear legal responsibility under the ECHR.

Territorial jurisdiction under the ECHR

162.The geographic extent of the ECHR’s application is governed by Article 1 ECHR, which states:

“The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined … this Convention.”

163.The precise meaning of “within their jurisdiction” has been explored by the ECtHR and has developed over the past 20 years. Inconsistencies in earlier case law were resolved by the Grand Chamber of the ECtHR in the case of Al-Skeini v United Kingdom.139

Box 9: Extra-territorial effect of the ECHR: Al-Skeini v United Kingdom

This case concerned allegations that the deaths of six Iraqi civilians, caused by British troops, had not been properly investigated as required by Article 2 ECHR (the right to life). The claim reached the House of Lords, where the Law Lords followed the leading ECtHR case of Bankovic v Belgium and ultimately held that only the claim brought in relation to the death of Baha Mousa in British Military custody in Iraq was valid. They found that all the other claims, which related to deaths occurring during patrols and encounters outside custody, fell outside the jurisdiction of the UK for the purposes of the ECHR (and thus the HRA)—meaning that no obligations were owed by the UK to those claimants. However, the Grand Chamber of the ECtHR concluded that all of the deaths had occurred within the jurisdiction of the UK for the purposes of the ECHR. The Grand Chamber recognised two exceptions to the essentially territorial nature of the ECHR’s jurisdiction: Firstly, where a contracting state has “effective control of an area” outside its borders, it must secure the full range of rights guaranteed under the Convention for the people within that area. Secondly, where agents of a contracting state exercise “control and authority over an individual” outside their territory they must secure the Convention rights of that individual—although only those that are relevant to the individual’s situation.140 It was under this second exception that the jurisdiction of the UK was recognised in Al-Skeini.

164.Al-Skeini v UK clarified the limited basis for obligations under the ECHR to extend beyond the borders of the states that had ratified the Convention. The UK Supreme Court subsequently confirmed the Strasbourg approach and applied the extra-territorial effect of the HRA in the case of Smith v Ministry of Justice, a case relating to the adequacy of equipment provided to members of the UK Armed Forces when serving overseas.141 The extra-territorial effect recognised in Al-Skeini is now relatively settled law. As the Law Society commented in their written evidence to us: “The exceptions to the general principle of territorial application are rightly restricted and their limits have been clarified. The position that has been established upholds human rights protections without stretching the reach of the HRA beyond its limits.”142 In her oral evidence, Helen Mountfield QC emphasised that this extra-territorial effect remains exceptional:

“The point is that it is exceptional for there to be extraterritorial jurisdiction. It only happens where British forces or agents or officers are exercising jurisdiction beyond the territory of the UK, which is unusual”.143

165.She added that “if state power is exercised by agents of the British executive, it seems to me that it ought to be supervised by agents of the British legislature, because where there is an action there should be a legal remedy. It makes sense for that remedy to be the same wherever state power is exercised.” We agree. We were also impressed by Richard Hermer QC’s evidence that the extension of the protections of the HRA beyond the borders of the UK was a vindication of the rule of law:

“Watching the experience of people come to court, be listened to, tell their version to a judge who was listening, seeing witnesses from the other side have to come and give evidence and be cross-examined, and to receive reasoned judgments, which, as it happens, vindicated their right, and seeing the reaction of Iraqis to that—Iraqis who had suffered at the hands of the British—I found a deeply patriotic moment, because it vindicated the rule of law in this country. They came out of this experience with an immensely positive view of this country, despite everything that they had been put through. I just felt exceptionally proud to have been part of that. It is a human element as to what the Human Rights Act is capable of bringing and what the rule of law does through it”.144

Hassan v United Kingdom

166.Professor Graham Gee referred us to arguments “that the law of armed conflict is a better suited legal regime for providing the rule of law over our overseas operations.”145

167.An argument of this type was made by the UK in the case of Hassan v UK, where it was submitted that ECHR jurisdiction based on taking a person into physical custody should not apply during the active hostilities phase of an international armed conflict, when the conduct of the State will be subject to the different requirements of international humanitarian law.146 This submission was rejected by the ECtHR, but the Court did accept that the requirements of the right to liberty (Article 5 ECHR) had to be construed against the background of the provisions of IHL. This meant that Article 5 should be read so as to allow for the detention of prisoners of war and the detention of civilians who posed a risk to security under the Third and Fourth Geneva Conventions, subject to the need to avoid arbitrariness and to reviews appropriate for the context of international armed conflict.

168.This case is of particular relevance to those who believe that the application of human rights law in armed conflict situations is unrealistic and/or problematic. In Hassan, while it was not accepted that human rights law had no place in conflict situations, the ECtHR demonstrated that it was not blind to arguments that the full requirements of international human rights law may not be appropriate for situations of armed conflict where international humanitarian law applies.147

Human rights protection for UK soldiers

169.One significant consequence of Al-Skeini and the recognition that public authorities can owe duties under the HRA outside the territory of the UK is that these duties are owed to British soldiers as well as those over whom they exercise control.

170.In Smith v Ministry of Justice, the Supreme Court followed Al-Skeini v UK and concluded that the UK owed duties under Article 2 ECHR (the right to life) to its own armed forces serving outside its territory (although as JUSTICE noted to us in their written evidence, the Supreme Court recognised that “the actual application of the HRA to UK forces must take account of the difficult and dynamic conditions on the battlefield”).148

171.The Law Society of England and Wales commented that:

“The HRA not only provides protections for those resident in a foreign territory and subject to actions of the UK, but also for UK state agents who are deployed or stationed there, often armed services personnel. Limiting extraterritorial application of the HRA therefore risks removing protections from our own citizens, should their rights be infringed.”149

172.The extra-territorial effect of the HRA is now relatively settled. It essentially ensures protection for those under the control of UK public authorities, even when those public authorities are operating overseas. It is important that UK Armed Forces personnel overseas - as well as other victims of human rights violations - can also benefit from the protections in the HRA.

Implications of reform

173.The IHRAR terms of reference ask whether there is a case for change to the circumstances in which the HRA applies to acts of public authorities taking place outside the territory of the UK. Since IHRAR began its work, and despite concerns raised by this Committee and others, some limited changes to the HRA have already been made in the Overseas Operations (Service Personnel and Veterans) Act 2021. In addition to changes relating to criminal responsibility for human rights violations overseas, and limitations for bringing civil claims, this Act has created specific additional considerations that a court must take into account when deciding whether to allow an HRA claim arising from overseas operations to proceed when it was brought outside the primary time limit of 12 months from the alleged violation. It also imposes an absolute (non-extendable) time limit on HRA claims arising from overseas operations of six years from the date of incident, or one year from the date of knowledge of the incident (whichever is later).150 The question posed by IHRAR thus becomes whether there is a case for any further change? Given the approach already taken in the Overseas Operations Act, it seems highly likely that any further changes envisaged by the Government would be intended to limit the extra-territorial reach of the HRA rather than to extend it.

174.The evidence we received was unanimously against any such change. The Law Society of England & Wales expressed the general sentiment of that evidence in saying that:

“Amendment of the HRA to limit extraterritorial application would have further perverse consequences for the advancement of human rights and for the rule of law overall. It would create a situation whereby public authorities are bound by human rights obligations at home, but free to violate them elsewhere.”151

175.The most obvious consequence of a change of this type would be that recognised by the House of Lords in Al-Skeini - it would leave a category of victim under the Convention unable to obtain a remedy in the UK and would put the UK in breach of its obligation to provide an effective remedy under Article 13 ECHR.152 This would be because public authorities acting overseas would no longer be bound under section 6 HRA to comply with Convention rights, and human rights victims of their actions would no longer be able to seek redress in domestic courts under section 7 HRA.

176.We have previously voiced our concern about difference in treatment of human rights victims just because they are not within the UK.153 The Scottish Human Rights Commission noted that this difference in treatment would affect British victims too:

“If the UK Government seeks to limit the reach of Convention rights so that they do not apply to UK activity abroad, this would remove protection for UK personnel abroad, as well as for non-UK citizens under our control. The extra-territorial effect of Convention rights means British troops and their families can ask our national courts to determine if the Ministry of Defence took reasonable steps to protect their lives from foreseeable risks such as through the procurement and deployment of appropriately armoured vehicles. It also requires the state to conduct an effective investigation into deaths abroad. Our military and their families may lose these protections if the extra-territorial reach of the Act is curtailed.”154

177.We also agree with evidence received from Rights and Security International, that reducing human rights protections for extraterritorial actions “carries institutional risks for the UK internationally”:

“The implications of the change would be twofold: firstly, there would be a risk of a ‘race to the bottom’, in which other States and non-State actors likewise failed to carry out their overseas actions in a manner compliant with human rights law. In times of conflict, this could place British soldiers in danger. Second, the UK’s international standing and engagement could be impacted by such a policy: as General Sir Nick Parker has recently noted, international coalition partners may be less likely to engage with the UK if it does not uphold its human rights obligations during conflict.”155

178.Of course, any such amendments to the HRA would have no effect on the ECHR itself, so the UK’s obligations under the Convention would not change. This would mean that public authorities operating overseas would still be bound by the same human rights obligations (under the ECHR) and that victims of human rights violations (including British victims) would still be able to bring a claim against the UK, but would be forced to take that claim to the Strasbourg Court. Richard Hermer QC noted this issue, but also the potential for cases to be brought before the International Criminal Court:

“ … the other really troubling consequence, if we were to tinker with the extent of the territorial jurisdiction, is that this would just go to Strasbourg rather than be dealt with by our own courts. Even more troubling, not least I think as perceived by many senior military personnel, is that this, taken in tandem with the overseas operation Act, will mean not simply scrutiny of our cases before the Strasbourg court but British soldiers at risk of being dragged to the International Criminal Court in The Hague.

The Human Rights Act would provide the mechanism for this country to show that we have properly investigated, which would mean that the ICC does not have jurisdiction, absent that our troops are going to be placed at risk of being dragged to The Hague. That is a cause of grave concern to all of us, but I know it is a concern for senior military personnel.”156

179.One particular aspect of the ECHR which has had a significant extraterritorial effect is the obligation under Article 2 ECHR to carry out an effective investigation into a death where there are reasons to believe it may have been unlawful. Richard Hermer QC noted that investigations of this type perform a public service, both in revealing human rights violations and in clearing suspicions surrounding lawful deaths. He added that “in those senses it performs an enormous public service. There have also been ongoing investigations under a judge into fatalities, which I am sad to say have produced some shocking findings but which again have been an opportunity not only for victims to have redress but for the armed services to learn lessons.”157

180.As we concluded in our Report on the Overseas Operations Bill, effective investigations into allegations of human rights violations by troops overseas are valuable and important and allow lessons to be learned. Changes to the HRA that would threaten the conduct and quality of such investigations would be of significant concern.

181.Ultimately, the Human Rights Act binds public authorities acting overseas only to a limited extent. It does so because the ECHR applies to all signatory states in respect of extra-territorial actions in certain, limited circumstances. Any attempt to amend the HRA to limit the extent to which public authorities acting overseas are bound by it could leave a category of victim under the Convention unable to obtain a remedy in the UK. This would put the UK in breach of its Article 13 ECHR obligation to provide those victims with an effective remedy. It would also leave the actions of UK public authorities, including the armed forces, open to challenge in the European Court of Human Rights rather than in the domestic courts. It may even expose our armed forces to the jurisdiction of the International Criminal Court. There is no justification for making any such amendments to the HRA.