Law Review: Human Rights of soldiers – and end to Democracy Village or an end to democracy?

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 [2010] UKSC 29

JUDGMENT
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’

Boris Johnson, the mayor of London, today won a high court order evicting protesters who have turned Parliament Square into a makeshift encampment.

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.

8 thoughts on “Law Review: Human Rights of soldiers – and end to Democracy Village or an end to democracy?

  1. The discussion about differing standards of care for trained British troops – as against troops in training, conscripts, or even troops of other members states – is interesting (see, for example, Lord Rodger @ Para 123).

    A preliminary reference procedure (to the ECtHR) would have been useful!

  2. The judgments obviously merit considerable study. However, it does seem that the Army might have done much better for Private Smith than it did. Surely, when he started suffering badly from the heat he could have been moved from the stadium (where 120 were billeted) back to Camp Abu Naji (which was not far away). One can understand a reluctance by judges to saddle commanders with human rights considerations but their handling of Smith surely left a great deal to be desired. Perhaps the inquest will bring that out?

  3. Obiter J – I would hope that the existing common law is sufficient to deal with these matters. I do not know enough about the intricacies of military law in so far as it relates to the general common law.

    I shall have to do some reading.

  4. Yes, assuming there is a common law duty of care then the “scope” of that duty would have to be defined. After that, establish breach and damage caused by the breach. Negligence actions can present a lengthy series of hurdles.

  5. whatever the legalities of the parliament square decision, it is farcical and dishonest (who’da thunk it!) for boris to claim that by evicting one set of people who wish to protest he preserves the rights of others who wish to protest. pathetic doublespeak of the most facile kind. like a war for peace – nobody would believe that (apart from parliament when they want to attack somewhere that has oil).

    surprising, isn’t it that westminster council (tory – former leader SIR simon milton) should wholeheartedly concur with mayor boris (tory – deputy some guy called SIR simon milton) about this. another landmark in this council’s novel approach to democracy alongside the ‘creative’ homes for votes policy that saw DAME shirley porter surcharged £42million.

    [interestingly westminster council urged a settlement (well, the tory majority did - the labour members were oddly opposed to such a kind move) that took £12million from her on the basis that was all she had. NOT DAME ANY MORE shirley now lives in abject poverty between her £1.5million london home and another in israel where she is lauded as a prominent benefactor of tel aviv university. (if you want to send her any money i will happily forward it to her - bless her: the poor dear barely knows where her next dept of fraud studies is coming from.)]

    ya know the bit in animal farm where they look at the pigs on their hind legs and can’t tell them from the humans. a bit like that – except this lot are easily distinguished from humans…

    if he has won in court, all well and good, but i can’t be alone in thinking that you don’t protect the right to protest by evicting protesters.

    am i? oh well…

    *whistling of wind across the plain of dry bones*

  6. Bit more on the Smith case in the Supreme Court. When you read the detail you discover (a) Private Smith died due to heat stroke at his base and (b) the government conceded that a fresh inquest was necessary.

    Mrs Smith got what she wanted after the High Court decision when the government conceded the inquest. The High Court found those in authority at fault.

    As for all the talk about human rights on the battlefield, it might be no more than persuasive since Smith was not on a battlefield! The Supreme Court might have issued an entirely obiter judgment!!

  7. Obiter J – I read the judgment in full today and I came to a similar conclusion – an entire obiter judgment! (As near as damn it) That must be a first?

    I can see absolutely no reason why the government should not be liable for care of soldiers in a non battlefield situation. No interference with operational heat of battle needs – just plain human rights.

  8. would they allow us to use parliament square to protest against the removal of democracy village? no???

    funny – thought not.

    that’s how much of a democrat that arse boris is. he loves democracy when it gives people a voice they can use to agree with him. blinded by entitlement, he can hear no voice that does not chime with his.

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