Do soldiers serving overseas have rights under the Human Rights Act 1998? Does the Ministry of Defence owe them a common law duty of care?

The facts

A panel of seven Justices will consider these issues over three days from 18 February. The case has been brought by the families of soldiers killed in Iraq, some when the Snatch Land Rovers in which they were travelling passed over improvised explosive devices, and others in a ‘friendly fire’ incident. Both sets of families argue that the deaths were caused or contributed to by inadequate provision of equipment and, in the ‘friendly fire’ incident, also inadequate training. They wish to bring claims against the Ministry of Defence for (1) breaching the soldiers’ right to life under article 2 of the European Convention on Human Rights (ECHR), by failing to take adequate steps to protect them against known risks to their life; and (2) negligence. The MoD applied to strike out both of these claims.

The decision of the Court of Appeal

The Court of Appeal (Lord Neuberger PSC, Moses LJ and Rimer LJ) held that the families could not bring their art 2 claims, since the soldiers were not within the UK’s jurisdiction for the purposes of applying Convention rights. But it held that, in principle, they could bring their negligence claims. It could not be said in the abstract that the MoD owed the soldiers no duty of care in respect of the provision of equipment. The MoD should not be treated differently from any other employer. The courts cannot adjudicate on decisions made in active operations which fall within the doctrine of ‘combat immunity’, but whether or not that doctrine applied would depend on the facts as analysed at trial. The claim could not therefore be struck out, but should go ahead to trial. The Supreme Court will hear appeals by the families on the Article 2 issue, and cross-appeals by the MoD on the negligence issue. There are written and oral interventions by the Equality and Human Rights Commission and JUSTICE.

More ‘dialogue’ with Strasbourg

This is the latest in a line of Supreme Court and Strasbourg decisions to grapple with the territorial scope of the ECHR and, in particular, whether it applies in overseas armed conflicts in which UK forces are involved.

This difficult and important issue has been litigated in two types of case: cases involving civilians killed or mistreated by UK forces abroad, and those involving the deaths of UK soldiers themselves.

Both types of case turn on the meaning of ECHR, art 1, which requires States to extend the Convention rights to all those within their ‘jurisdiction’. Clearly this covers everybody within the State’s territory. But what about when the State invades another country? Strasbourg authority suggests that the Convention obligations can cross borders. The precise test has been much debated, but the basic principle is that, where a State takes effective control over the territory of another State, it may take its Convention obligations with it.

Much turns on the facts. In the case of Al-Skeini v Ministry of Defence [2007] UKHL 26, the House of Lords held that Baha Mousa, an Iraqi civilian who had died as a result of his treatment by British soldiers in a military detention facility in Iraq, was sufficiently within UK control to fall within art 1. The effect of this was that there was an obligation under Article 2 to carry out a full and independent investigation into his death. This led to the Baha Mousa Inquiry, carried out by Sir William Gage, which reported in 2011.

Along with Baha Mousa, other Iraqi civilians also brought claims in relation to their deaths or mistreatment in Iraq, in areas under overall UK control, but not in detention facilities. The House of Lords in Al-Skeini held that, unlike Baha Mousa, these individuals did not fall within the scope of Article 1 because, not being in detention, the UK forces lacked the degree of control which they had exercised over Baha Mousa.

Strasbourg disagreed. In Al-Skeini v UK (App No. 55721/07), it held that those individuals had also fallen within the UK’s jurisdiction, given the control which the UK forces exercised over the area as a whole (the judgment contains a strongly-worded separate opinion by Judge Bonello, observing that ‘For my part, I believe that those who export war ought to see to the parallel export of guarantees against the atrocities of war.’ [38]).

But what about the soldiers themselves? The Supreme Court considered this in 2010, in a case confusingly also called Smith (R (Smith) v Deputy Coroner for Oxfordshire and Secretary of State for Defence [2010] UKSC 29, [2011] 1 AC 1 [‘Smith 1’]), where the claimant was no relation to the claimant in the current case (‘Smith 2’). In Smith 1 the claimant’s son, a serving soldier, had died from heat-related illness on a UK army base in Iraq. The Court held that he did fall within the UK’s jurisdiction for the purposes of the ECHR, since he had been on an army base at the time (thus meeting the ‘control’ test). This meant that the inquest into his death had to comply with ECHR, art 2 of the Convention. But six of the nine Justices went on to rule more broadly that soldiers serving abroad are not covered by the Convention when they were on operations outside the base. (The three Justices in the minority – Lord Walker, Baroness Hale and Lord Collins – considered that the issue was academic, since it did not arise on the facts of the case, and would have preferred the Court not to have considered it on that occasion).

So at present, the state of play in the UK is that there is Supreme Court authority – though arguably obiter – to the effect that soldiers abroad are only covered by Article 2 when on their bases. However, there is subsequent Strasbourg authority in Al-Skeini which, the families argue, although only dealing in terms with the position of civilians, also indicates that the majority ruling in Smith 1 was incorrect, and that soldiers serving abroad are in fact covered by the ECHR.

How will the issue be resolved, and by whom? The Strasbourg Court is going to consider exactly this issue in a pending application called Pritchard v UK (App No. 1573/11), another case concerning the death of a British soldier on active service overseas. Pleadings closed in that case in July 2012, and the Strasbourg decision is awaited. When available, it will clarify the very issue which the Supreme Court will grapple with in Smith 2. Curiously, the Government has asked Strasbourg to suspend its decision in Pritchard. In the meantime, it has taken the issue back to the Supreme Court in Smith 2. The case has been rushed into the Supreme Court list at short notice, on a very tight timetable. Given recent history, where the Supreme Court has consistently taken a narrower view than Strasbourg of the application of the ECHR, does the Government hope to persuade the Supreme Court to endorse the remarks of the majority in Smith 1, in an attempt to push Strasbourg in the right direction when it finally considers the Pritchard case? The decision in Smith 2 will be an important one, not just for the soldiers’ families, but for the development of the common law duty of care, the scope of the Convention, and the ongoing human rights ‘dialogue’ between London and Strasbourg.