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Human right laws should be extended to the battlefield, court to be told
The Government's human rights watchdog has said it will take on Defence Secretary John Hutton and the Ministry of Defence in a test case to extend human rights laws to soldiers on the battlefield.
The Equality and Human Rights Commission, chaired by Trevor Phillips, will tell the Court of Appeal tomorrow that armed forces personnel serving overseas have a right to life under the European Convention and the Human Rights Act - whether or not they are physically on a base.
But Mr Hutton and the MoD believe senior judge Mr Justice Collins was wrong when he ruled in the High Court that it could breach British soldiers' human rights to send troops out on patrol or into battle with defective equipment.
Mr Justice Collins, sitting in London last April, said it had to be recognised that the lives of members of the armed forces when sent to fight or keep order abroad "cannot receive absolute protection".
Then he added: "But the soldier does not lose all protection simply because he is in hostile territory carrying out dangerous operations.
"Thus, for example, to send a soldier out on patrol or, indeed, into battle with defective equipment could constitute a breach of Article 2 (right to life) under the European Convention on Human Rights."
British servicemen and women were entitled to some measure of legal protection "wherever they may be", he said.
The test case involves the death of Territorial Army soldier Private Jason Smith, 32, of Harwick, in the Scottish Borders, who died of heatstroke in Iraq.
Pte Smith, who joined the TA in October 1992, was sent to Basra in June 2003 and two months later fell ill in temperatures of 60C (140F) while based at the Al Amara stadium, southern Iraq.
Oxfordshire's assistant deputy coroner Andrew Walker, giving his verdict at Pte Smith's inquest in November 2006, said the death was "caused by a serious failure to recognise and take appropriate steps to address the difficulty that he had in adjusting to the climate".
But because of flaws in the original hearing, a fresh inquest is to be held.
Today, Pte Smith's mother, Catherine, from Roxburghshire in Scotland, said: "I am very disappointed that the MoD has decided to appeal the court's decision. How can it be right to remove human rights from soldiers when they are at their most vulnerable?"
A spokesman for the Commission said a ruling in their favour would mean the MoD will have to "provide greater protection to soldiers serving overseas" and that "bereaved families would be entitled to information about exactly what happened to their loved ones".
It is understood to be the first time the courts will have considered how the Human Rights Act applies to British forces serving abroad.
A ruling against the MoD could have implications for its obligations in relation to everything from equipment to medical facilities and the result will likely be watched closely by the families of more than 30 servicemen and women who have been killed in heavily-criticised Snatch vehicles in Iraq and Afghanistan.
John Wadham, the Commission's group legal director, said: "Our service personnel are required to lay down their lives for this country. In return, we should afford them the same human rights protection as every other citizen.
"Of course, we recognise that the armed forces are operating in dangerous situations. This is not about an unreasonable expectation that the MoD will protect their life at all costs in a combat situation. It is about providing a good duty of care to them to ensure they remain as safe as possible.
"Where there has been a tragic loss of life in unclear circumstances like Jason's, families are entitled to know what happened to their loved ones and what measures may be taken as a result to stop other families suffering the same fate.
"They should not be locked out of the process."
A MoD spokesperson said: "The MoD is appealing against Mr Justice Collins' ruling because it creates some uncertainty about the applicability of the European Convention of Human Rights.
"Justice Collins' ruling did not, in the MoD's opinion, reflect previous decisions on this issue.
"In particular, it did not reflect a previous judgment handed down in the House of Lords.
"This uncertainty could have a significant impact on the legal circumstances of deployed personnel, and how we conduct our operations once deployed."
The Government's human rights watchdog has said it will take on Defence Secretary John Hutton and the Ministry of Defence in a test case to extend human rights laws to soldiers on the battlefield.
The Equality and Human Rights Commission, chaired by Trevor Phillips, will tell the Court of Appeal tomorrow that armed forces personnel serving overseas have a right to life under the European Convention and the Human Rights Act - whether or not they are physically on a base.
But Mr Hutton and the MoD believe senior judge Mr Justice Collins was wrong when he ruled in the High Court that it could breach British soldiers' human rights to send troops out on patrol or into battle with defective equipment.
Mr Justice Collins, sitting in London last April, said it had to be recognised that the lives of members of the armed forces when sent to fight or keep order abroad "cannot receive absolute protection".
Then he added: "But the soldier does not lose all protection simply because he is in hostile territory carrying out dangerous operations.
"Thus, for example, to send a soldier out on patrol or, indeed, into battle with defective equipment could constitute a breach of Article 2 (right to life) under the European Convention on Human Rights."
British servicemen and women were entitled to some measure of legal protection "wherever they may be", he said.
The test case involves the death of Territorial Army soldier Private Jason Smith, 32, of Harwick, in the Scottish Borders, who died of heatstroke in Iraq.
Pte Smith, who joined the TA in October 1992, was sent to Basra in June 2003 and two months later fell ill in temperatures of 60C (140F) while based at the Al Amara stadium, southern Iraq.
Oxfordshire's assistant deputy coroner Andrew Walker, giving his verdict at Pte Smith's inquest in November 2006, said the death was "caused by a serious failure to recognise and take appropriate steps to address the difficulty that he had in adjusting to the climate".
But because of flaws in the original hearing, a fresh inquest is to be held.
Today, Pte Smith's mother, Catherine, from Roxburghshire in Scotland, said: "I am very disappointed that the MoD has decided to appeal the court's decision. How can it be right to remove human rights from soldiers when they are at their most vulnerable?"
A spokesman for the Commission said a ruling in their favour would mean the MoD will have to "provide greater protection to soldiers serving overseas" and that "bereaved families would be entitled to information about exactly what happened to their loved ones".
It is understood to be the first time the courts will have considered how the Human Rights Act applies to British forces serving abroad.
A ruling against the MoD could have implications for its obligations in relation to everything from equipment to medical facilities and the result will likely be watched closely by the families of more than 30 servicemen and women who have been killed in heavily-criticised Snatch vehicles in Iraq and Afghanistan.
John Wadham, the Commission's group legal director, said: "Our service personnel are required to lay down their lives for this country. In return, we should afford them the same human rights protection as every other citizen.
"Of course, we recognise that the armed forces are operating in dangerous situations. This is not about an unreasonable expectation that the MoD will protect their life at all costs in a combat situation. It is about providing a good duty of care to them to ensure they remain as safe as possible.
"Where there has been a tragic loss of life in unclear circumstances like Jason's, families are entitled to know what happened to their loved ones and what measures may be taken as a result to stop other families suffering the same fate.
"They should not be locked out of the process."
A MoD spokesperson said: "The MoD is appealing against Mr Justice Collins' ruling because it creates some uncertainty about the applicability of the European Convention of Human Rights.
"Justice Collins' ruling did not, in the MoD's opinion, reflect previous decisions on this issue.
"In particular, it did not reflect a previous judgment handed down in the House of Lords.
"This uncertainty could have a significant impact on the legal circumstances of deployed personnel, and how we conduct our operations once deployed."
