Human Rights and the Armed Forces: The Blog of Law

By: Tom Bisgood

The Human Rights Act has received a lot of stick over the years for its apparent role in a myriad of societal ills including helping prisoners gain access to pornography and enabling asylum seekers to stay in Britain because their cat will miss them too much (#catgate2011). Now in its most daring move yet it has supposedly turned its attention to our national security and will not stop until it is torn asunder

According to a recent report by Policy Exchange, a ruling by the Supreme Court on Human Rights Law is posing a threat to military personnel’s ability to make decisions in the field and risks negatively impacting combat operations due to an excess of red tape. Tom Tugendhat, who recently served in active duty as the military assistant to the Chief of Defence staff, argues “Over the past decade, legal steps based on the European Convention on Human Rights have undone safeguards Parliament drew up to ensure military commanders have the freedom of manoeuvre to make vital decisions on the ground”.

This has all emerged from the ruling on the Smith and Others v Ministry of Defence case in June, and the implications it has for the common law doctrine of Combat Immunity which “operates to exclude civil liability for negligence and damage caused to property or person committed by the armed forces during certain combat operations”. This case surrounds, among other incidents, a tragic accident in which a group of soldiers were killed due to a miscommunication that led to a challenger II tank of the Second Royal Tank Regiment firing on personnel from the Queen’s Royal Lancers leading two deaths and two injuries.

The case led to the Supreme Court making the decision that firstly, what was a previously common law concept of negligence would now be extended to include the military and secondly, the military and third parties would become subject to the European Convention on Human Rights. This mean that claims can now be launched against the Ministry of Defence (MoD) for damages under Human Rights law or negligence.

So, what are the implications for our national security? Defence Secretary Phillip Hammond is concerned that the ruling will make it more difficult to carry out operations. In addition, the report by Policy Exchange argues that setting too high precedents to combat may risk paralysing the army if a war emerged where our national survival was on the line. However, the key point here is that commanders in the field are still not held accountable for the decisions they make in the heat of combat (within reason); it is the MoD. Jocelyn Cockburn, the lawyer representing the families in the case stated “These cases are not about decisions taken by corporals on the battlefield. They’re about decisions in relation to equipping troops, decisions taken well away from the battlefield in the UK”. Furthermore, and most importantly, the Human Rights Act can’t be used against an individual to make a claim. It could only be used against a governmental institution, like the MoD

Moreover, the report claims that the Supreme Court’s ruling will negatively impact the concept of combat immunity, however, on the contrary, as Sam Fowles, a researcher at Queen Mary, points out it actually serves to strengthen it as it was only originally purposed to apply to soldiers in the field, which by all accounts it still does.

Admittedly the MoD may incur a larger legal bill than before. In the report Policy Exchange highlight that the MoD faced 5,287 claims between 2012 and 2013 costing them approximately £36 million a year and that they will have paid a total of £57 million on inquiries by 2014. Given the current economic climate and the government’s budgetary deficit it would be unfair for me to say this aspect isn’t an issue and in the spirit of trying to maintain a balanced argument there could be a double edged sword effect as MoD spending more on claims against them could mean they have less in their budget for other things, like giving troops the best equipment. Nonetheless, the main point here shouldn’t be about budget constraints or decisions in combat, but what Human Rights are all about, namely holding governments accountable for their actions.

Tom Tugendhat claims that “The focus on rights misunderstands the nature of armed forces. As the ultimate guarantors of a nation’s liberty they have agreed, voluntarily, to surrender or limit many of their own rights. Without this the nation would be undefended”. While it may be true that a soldier is willing to make the ultimate sacrifice of his right to life for Queen and country it does not mean that MoD is allowed to be in any way lax in the effort to ensure that she or he does not have to. Whatever burdens the MoD may have to face, the bottom line is that soldiers should be equipped properly and the government should face the consequences of their actions if they fail to do this.

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