Supreme court quashes troops’ human rights ruling
The Independent: The Supreme Court quashed a landmark ruling that British soldiers serving abroad are protected by human rights laws at all times. Six of the nine justices who heard the case in March at the Supreme Court overturned High Court and Court of Appeal judgments over the death of Private Jason Smith in Iraq while serving with the Territorial Army. The court was asked to rule on whether a British soldier on military service in Iraq is subject to UK jurisdiction and covered by human rights laws not only when on a British military base or hospital.
R (Smith) v Secretary of State for Defence & Anor  UKSC 29
The Supreme Court allowed the appeal on the jurisdiction issue (Lady Hale, Lord Mance and Lord Kerr dissenting) and unanimously dismissed the appeal on the inquest issue. It held that it was not necessary in every case of a death of a serviceman abroad to carry out an investigation which examined whether there was fault on the part of the state because (a) the Human Rights Act 1998 did not apply to armed forces on foreign soil and (b) in any event, there was no such automatic right. The type of investigation would depend on the circumstances of the case.
The jurisdiction issue
Lord Phillips stated that the European Court of Human Rights in Strasbourg had held that ‘jurisdiction’ within the meaning of article 1 was essentially territorial but extended in exceptional circumstances requiring special justification to other bases of jurisdiction. The difficulty lay in defining those exceptions [para 11]. It was unlikely that the Contracting States, when they agreed the ECHR in 1951 in the aftermath of a global conflict in which millions of troops had been deployed, regarded it as desirable or practicable to extend the protection of article 2 to troop operations abroad [para 58]. It was a novel suggestion that a state’s armed forces by reason of their personal status fell within the jurisdiction of the state when on foreign soil and the proper tribunal to resolve the issue was the Strasbourg Court itself [para 60]. Lord Mance, dissenting, considered that as an occupying power in Iraq, the UK had under international law an almost absolute power over the safety of its forces.
The inquest issue
Lord Phillips stated that where there was reason to suspect a substantive breach by the state of the article 2 right to life, it was established that the state of its own motion should carry out an investigation into the death which had certain features: a sufficient element of public scrutiny, conducted by an independent tribunal, involving the relatives of the deceased and which was prompt and effective [para 64]. There was no automatic right to such an investigation whenever a member of the armed forces died on active service [para 84]….
James Eadie QC, representing the Ministry of Defence, had told the March hearing it would never be possible to guarantee rights under the European Convention to soldiers on duty wherever they are in the world.
“Effective and faithful application of the Convention means that not only must the State have exclusive legal and physical control over persons who benefit from it but also legal and physical control over both the area of its application and over those other persons within that area
Per Lord Collins, jurisdiction could not be established simply on the basis of the UK’s authority and control, nor where there policy grounds for extending the scope of the ECHR to armed forces, which would involve the court in issues relating to the conduct of armed hostilities which were essentially non-justiciable.
The decision is bound to attract a degree of comment. A key difficulty identified is the practical difficulty that application of the HRA to warfare situations would be the restrictive effect it may have on decisions of field commanders on the ground.
Boris Johnson wins court order to evict Parliament Square protesters
Guardian: London mayor’s move welcomed by Westminster council as end to ‘hijacking of one of London’s historic public spaces’
Mr Justice Griffith Williams said the mayor had “directed himself correctly, considered all the relevant matters and reached a reasoned decision which cannot be criticised”.
Importantly, the judgment does not affect the activist Brian Haw, who has been protesting on the pavement by the square, opposite the Houses of Parliament, for the past nine years. Haw first set up camp in June 2001 in a one-man protest against war and foreign policy – initially the sanctions against Iraq.
When I popped over to have a look a couple of weeks ago, I noted the absence of a Police presence but did see a lot of people drinking heavily, not doing a huge amount of protesting or, indeed, anything at all and could not really see much point to what those people were doing. But there we are. The decision may well attract negative comment from many. I shall not be joining the negative comment – because it is clear from the decision that rights to protest are being maintained. Indeed, May Johnson has stated that it returns Parliament Square not only to people who wish to view Parliament but also to those who wish to protest. However, The Guardian noted, the Green party GLA member Jenny Jones said it was “a bad day for democracy in London”. I’m not so sure I see this decision in quite that light. If people wish to protest, they will do so. We shall see what transpires.