Human rights ruling does not alter commanders' authority to make operational decisions, nor does it leave them open to personal legal challenge
The Chief of the Defence Staff has issued the following statement on the day of the Appeal Court ruling in Secretary of State for Defence v R (Smith):
"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."
The highlighted paragraph is what BAFF had been saying all along, but was in stark contrast with the MOD's own public reaction to the judgement -
... We are very concerned by the attempt to insert lawyers into the chain of command in the middle of a battle, which would only create uncertainty, hesitation and potentially greater risk to our people. [MoD Defence News, 19 May 2009]
Comment from The Economist
For now, the ruling has made some long-term critics of human rights think twice. Just as the campaign for Gurkha soldiers’ settlement rights attracted the backing of those who normally oppose immigration, the ruling on soldiers’ rights has won support in unlikely quarters. The Daily Express, a tabloid newspaper that often rails against the “madness” of the human-rights act, said it was good that soldiers would get the protection already given to criminals. Campaigners for human rights, meanwhile, are delighted to have some more popular examples of the act’s benefits to talk up.
- The Economist, 21 May: Soldiers' human rights: The charge of the legal brigade