Plans for UK military to opt out of human rights laws would leave our soldiers without vital protections

Homs, Syria, 2013. Pic: BWB Studio

At the Conservative party conference last week the Government heralded a ‘landmark measure’ to protect armed forces from ‘persistent legal claims in future overseas operations’. The plan is to introduce a presumption to derogate from (i.e. opt out of) the European Convention on Human Rights (ECHR) in future conflicts.

Reading the Ministry of Defence (MoD) press release I was struck by the spin and how, by not admitting that their plan also involved removing protections from soldiers, the briefing amounted to misinformation. Sadly the majority of the press took up the hook and reported the story in the way intended, thus providing another opportunity to beat up on the Human Rights Act and the lawyers who use it to hold the Government to account.

It is questionable whether the Government can in fact introduce a presumption to opt-out of the ECHR in unknown future conflicts and whether this would have any legal force. Derogation will only be permitted ‘in time of war or other public emergency threatening the life of the nation’ and then only to the extent ‘strictly required by the exigencies of the situation, provided that such measures are not inconsistent with its other obligations under international law’. Avoiding legal claims, for instance, is clearly not a national emergency. However, I will not enter into this debate here.

The analysis missing from the Government’s announcement was how their plans to derogate would impact on the hard won human rights protections for soldiers themselves. Assuming that it is their intention to derogate from article 2 of the ECHR (the right to life) it is clear that, these protections, would go.

What does the ‘right to life’ mean in the face of enemy fire on the battlefield?

Soldiers are intentionally put in high risk situations and they knowingly take risks in order to safeguard the lives of others. Human rights do not change this, however, article 2 requires that when putting troops in danger the MoD must take reasonable steps to protect them from known risks to life. There is nothing unreasonable or disproportionate about human rights and yet the MoD have fought hard to deny that they owe a duty to protect soldiers in conflict.

I represented the claimants in the 2013 Supreme Court case; Smith & Ors v Ministry of Defence. My clients were families of soldiers killed by roadside bombs whilst travelling in poorly armoured Snatch Land Rover vehicles. One mother, Sue Smith, had been campaigning since her son’s death in 2005 to remove these unsafe vehicles from military use. Snatch were, at best, designed to protect from small arms fire and were completely defenceless in the face of the roadside bombs in use by insurgents in Iraq. They were nicknamed ‘mobile coffins’ by soldiers. My clients claimed that the MoD failed to provide adequate armoured vehicles which were obviously needed and would have saved their loved ones’ lives.

The MoD tried to get the case struck out of court, saying firstly that British soldiers do not come within the jurisdiction of the UK when deployed abroad and secondly, in any event it would be wrong to impose any duty on the MoD to protect soldiers on the battlefield. At the time it had already been established that Iraqi detainees enjoyed the protections of the ECHR. The MoD argued that – notwithstanding that the ECHR extended to Iraqis who were brought under the control and authority of British soldiers – there should be a special carve out for our military so they could not rely on these protections themselves.

The victory by the Snatch Land Rover families in court in 2013 meant that their individual cases against the MoD could continue. It also meant that in future conflicts, the MoD will owe a legal duty to take reasonable steps to safeguard the lives of our servicemen and women when deployed abroad to fight on our behalf.

I have been involved in legal action on behalf of soldiers and their families for over 10 years –both in inquests and the civil courts. It is brutally difficult to get to the truth and the MoD always seeks to restrict scrutiny on its actions. I am therefore cynical that this latest announcement is to protect our soldiers. It is part of the campaign since the Smith judgment in 2013 to find a way to remove human rights protections from soldiers. By doing this it reduces the ability of those soldiers to hold the Government to account for equipment and other failures.

It is only three months since Chilcot’s Iraq Inquiry reported on the ‘wholly inadequate’ preparation for the Iraq conflict both before and after the invasion. He criticised failures by the military to address equipment shortages and to identify capability gaps. There was specific mention of the MoD being too slow to react to the threat posed by roadside bombs and replace Snatch Land Rovers with more heavily armoured vehicles. He found that these delays should not have been tolerated.

The response from the MoD has been somewhat muted, although on July 14 2016 the Defence Secretary Michael Fallon did accept the report and acknowledged in a speech in the House of Commons that ‘[the MoD] failed to adapt to the changing situation on the ground and there were significant equipment shortfalls for our troops’. Both he and others in the MoD are keen to stress that lessons are being learned. In a blog (Learning from Chilcot) on 8 September 2016 the MoD Permanent Secretary, Stephen Lovegrove wrote:

‘When we make [overseas] interventions, our commitment is to ensure that we do so on the basis of the best possible understanding of the situation, a robust decision-making process, and with the very best tools needed to do the job and a culture that does not stifle debate and challenge.’

How does the decision to remove human rights protections from our troops at times of overseas interventions fit with this narrative? I do not believe that it does. Look at the actions rather than the words.

It is easy for the Government to throw mud at ‘ambulance chasing lawyers’ and ‘human rights gone mad’ and too often this obscures the real issues. Of course the MoD would find it easier to operate without legal scrutiny but this is not in the national interest and it is certainly not in the interests of our soldiers. Without the ability to hold the Government to account for their safety record there is a serious risk that standards will not improve and soldiers’ lives will be lost unnecessarily.