The High Court Decision on battlefield rights is not as terrifying as the MoD would have us think

By Frank Ledwidge for RUSI.org

On Monday 18 May, the Court of Appeal confirmed that the Human Rights Act does apply to British troops, even on the battlefield. Since that decision of a strong Court of Appeal in Jason Smith's case was handed down, the media has been full of harrumphing senior officers, politicians and Ministry of Defence (MoD) briefers. We have heard that the judges are 'inserting lawyers into the chain of command'. It is not entirely clear what this media strategy, if strategy it is, is intended to achieve. If the aim is somehow to frighten the judges into a collective realisation that they were wrong all along, they do not know the English Judiciary. No serious lawyer with expertise in this field that I have spoken to believes that this was anything other than the right legal decision.

No surprise for serving personnel

Moving aside for a moment from the law, ask soldiers whose jurisdiction they believe they are under and the answer, surely, will be UK law. After all, they are subject to military law, why in principle should they not be protected by human rights law? This point was well made by Master of the Rolls, Sir Anthony Clark, in his Judgement - a judgement one suspects, few commentators have read. Very few soldiers, I venture to say would agree with the somewhat bizarre proposition advanced by the MoD, that by driving through the chicane at the front gate of Camp Bastion, they leave their rights, and the MoD its duties, behind.

Two arms to the Judgement

Besides, the Smith decision is not as frightening as some affect to find it. There were two arms to it. The first answered the question as to whether the jurisdiction of the European Convention on Human RIghts (ECHR) extended to soldiers wherever they are. It is worth mentioning here that the ECHR is part of English Law, not some foreign transplant or shady legal intruder. The answer was yes. The second question was a more complicated question as to what extent inquests should be capable of looking into cases such as Private Smith. There was no discussion or question of interfering with chains of command. This is about ensuring that servicemen are protected against unnecessary risks. It is not about protecting against risks inevitably attendant on combat situations.

Reasonable protection

This is not a health and safety exercise. The argument of Smith's lawyers, quite plainly, was that all reasonable steps from the perspective of an operational army, not all possible steps, be taken to protect soldiers. Should urgent operational exigencies mean that the proper equipment is not reasonably available, for example, for a Nationals Extraction Operation, but the operation was time-sensitive and needed to get off the ground quickly, no criticism could or would be justified. It was never the contention of Smith's lawyers, and it is surely not the intention of the court that every possible effort is made to ensure safety. The key word is reasonable. One would hope that the MoD, as the first class military administration it sets out to be, endeavours to ensure reasonable care already. In trying to support their somewhat leaky legal position, the MoD overplayed their hand by setting up legal straw men which their opponents were more than happy to burn. In the words of one lawyer close to the case, 'we are certainly not going to have judges second guessing operational officers.'

From the legal tactical perspective, lawyers with experience in these matters take the view that the MoD made a serious mistake litigating this case. If the point had been conceded early in the proceedings that service personnel are protected by the Human Rights Act, this case and the controversy that has grown up around it, would have gone no further. Few lawyers had any real doubt that servicemen were so protected. From the MoD perspective they should not have flagged this issue up so prominently.

Future Litigation and Clarification

There will of course be litigation flowing from this case. With those cases, matters will be clarified, and the worries of pundits settled. That is the way with the common law. The litigation will make clear what Smith's lawyers made luminously clear in their arguments before the Court of Appeal; that the fears of operational officers will prove groundless. Yes, there will be setbacks for the MoD. But if this has the effect of making our armed forces more operationally efficient, as well as ensuring soldiers have all the protection that can reasonably be afforded to them, that will well be no bad thing. For now, judgement has been handed down and that is that. Next step is an Appeal to the House of Lords. That Appeal has every chance of failing. The MoD is going to have to live and deal with Secretary of State for Defence v Smith.

Frank Ledwidge is a barrister who has served several front-line operational tours. In 2007 he was Justice Advisor to the UK Task Force in Helmand.

The views expressed above are the author's own, and do not necessarily reflect those of RUSI.