Supreme Court Rules on Soldiers’ Human Rights
Posted: Thursday 1 July 2010
The Supreme Court has today confirmed that members of our armed forces are not protected by Human Rights legislation when they are outwith a UK base while in active service abroad.
Nine Judges of the Supreme Court heard an appeal in the case which involved the death of Private Jason Smith in Iraq in 2003. Private Smith suffered heat stroke, leading ultimately to his death. His mother, backed by the Equalities and Human Rights Commission, contended that the UK owed her son a duty to respect his right to life under article 2 of the European Convention on Human Rights (ECHR). Such a duty would have obvious implications in relation to, for example, whether troops’ equipment and kits are adequate.
Six of the nine Judges decided that there is no such duty when troops are outwith a base in these circumstances, as they are not covered by article 1 of the ECHR (relating to jurisdiction). Lord Collins said that there are no “policy grounds” for extending the scope of the ECHR in this way and to do so “would ultimately involve the courts in issues relating to the conduct of armed hostilities which are essentially non-justiciable”.
This decision overturns the decisions of the lower courts which heard this case previously. However, the Supreme Court did agree with the lower courts that a full inquest complying with article 2 of the ECHR should be held into Private Smith’s death.
European Court of Human Rights
At least one other case on a similar issue is due to be heard by the European Court of Human Rights in Strasbourg. This issue of jurisdiction has not yet been decided by Strasbourg and the Supreme Court, regardless of today’s judgement, acknowledged it is a decision “best left to Strasbourg” (Lord Hope).
Although the Government and Ministry of Defence will be relieved at this ruling, any decision from Strasbourg on this matter will be arguably more important.
