MOD loses appeal regarding Human Rights Act

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http://www.mod.uk/DefenceInternet/DefenceNews/DefencePolicyAndBusiness  /ModLosesAppealRegardingHumanRightsAct.htm


MOD loses appeal regarding Human Rights Act

Ministry of Defence website, 18 May 2009


The Court of Appeal has today ruled against an MOD appeal against the application of articles of the European Convention on Human Rights to all members of the UK Armed Forces carrying out military duties abroad.

The MOD appeal was against the judgment made in a judicial review of April 2008 relating to the death of Private Smith of heatstroke in Iraq in 2003. Pte Smith's family requested the judicial review following the inquest into his death.

While the MOD accepted that the European Convention on Human Rights (ECHR) applied to Pte Smith, as he died on a British military base, the judicial review ruled more widely that the MOD had an obligation to avoid or minimise risks to the lives of its troops, wherever they were serving - even while on patrol or in battle.

The MOD has been given leave to appeal to the House of Lords regarding the Court of Appeal's ruling today, Monday 18 May 2009, whose details will be studied and its consequences looked at very closely before a decision is taken to appeal.

In a message to the UK's Armed Forces Chief of the Defence Staff, Air Chief Marshal Sir Jock Stirrup, said:

"We are disappointed by this judgment, which allows claims to be brought against the Department under the Human Rights Act in relation to operations overseas. It has potential implications for the ability of our Armed Forces to conduct such operations, which we are now considering carefully.

"We take very seriously the duty of care we have to our people. But we have consistently argued that, in the heat of battle, during dynamic, fast-moving military operations on foreign territory, it would be unrealistic to expect to be able to guarantee the rights and freedoms which the European Convention on Human Rights seeks to secure.

"Nevertheless, I want to reassure commanders at all levels that this judgment does not alter their authority to make operational decisions, nor does it leave them open to personal legal challenge. Any claims under the Human Rights Act would be brought against the Department, not individual commanders; legal liability under the Act lies with MOD.

"Meanwhile, we shall continue to argue for a legal framework that enables our Armed Forces to sustain the very high level of effectiveness in difficult and dangerous operations that they have demonstrated so convincingly in recent years."

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