Conflicting reports

Posted by Emma Norton on 22 October 2013

Last week a Policy Exchange report dramatically declared that the law is increasingly impeding our military's ability to operate effectively on the battlefield. This poses a “mortal threat” to the “culture and ethos” of our Armed Forces, it argued – risking “paralysing” service personnel. The report suggested young officers have a tough enough job without worrying about judges one day measuring their actions against human rights ideals. The message was simple – don't tell us how to do our jobs and don't ask questions when things go wrong. A familiar one for Sue Smith, whose son Private Phillip Hewett was killed when a bomb tore through his Snatch Land Rover in Iraq. During her fight for justice she was told "better people" than her were making decisions and to "leave it to the professionals".

Despite the report's title, the law is actually pretty clear. If the State has authority and control over an area, it has jurisdiction over it. If not the State, who? There'd be no rule of law; no accountability. So the European Convention on Human Rights must apply. The main protection the report takes issue with is Article 2, the right to life. But all Article 2 demands is that reasonable steps to protect life be taken in certain circumstances – something most responsible officers already do every day.

So if a civilian is taken into custody, tortured and killed, the Convention gives hope of redress and an independent investigation. Policy Exchange argue that the pre-existing, nebulous “laws of armed conflict” should suffice. But those laws did nothing to help Baha Mousa, the innocent hotel worker abducted and murdered by British soldiers. Only the ECHR guaranteed an impartial inquiry into his death.

Similarly, the Convention affords a small bundle of fundamental rights to soldiers fighting wars far from home. The report is particularly critical of the Supreme Court's decision earlier this year in the case brought by Sue Smith and other families. That challenge concerned the Ministry of Defence's decision to deploy Challenger and Snatch Land Rovers in areas at high risk of explosions which such vehicles couldn't withstand. In a careful, cautious judgment, the Court agreed it should be slow to question operational decisions on the ground and avoid imposing unrealistic obligations. All the judges decided was that decisions taken far away from the battlefield might later be appropriate for review by the courts. So if there's evidence the MoD knowingly sent out soldiers with inadequate equipment, it cannot argue there was no duty to protect them. Nor can it hide behind the principle of “combat immunity” where it's been recklessly negligent.

The Policy Exchange report was nakedly political; employing hysterical language to misrepresent the law. If its proposed reforms were introduced, the military would never properly be held to account. So if the authors believe they're acting on behalf of our Armed Forces, they're sorely mistaken. Why should our service personnel enjoy any fewer fundamental rights than civilians? Of course soldiers know their lives are on the line – and they don't assume combat roles dreaming of compensation. But they'e entitled to expect the MoD to do all it reasonably can to give them the best chance of coming home alive.

Last week also saw us lodge our application for a fresh inquest into the death of Cheryl James, one of four young British Army recruits to die at Deepcut barracks. It was only the Human Rights Act that made our application possible. And earlier this year only the HRA enabled us to force the MoD to order an independent investigation into a serious rape allegation. Such experiences show why human rights protections matter to everyone, regardless of their uniform. Of course the MoD might not appreciate the scrutiny the HRA and ECHR provide. But second-best justice for our troops simply isn't good enough – they deserve better.

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Immigration Act 2014

Emma Norton

Emma Norton

Head of Legal Casework