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Thursday, 1 July 2010

The Territoriality of the Human Rights Act

Boys, we leave the base tomorrow. Leave your human rights behind.” The disappointing decision regarding the territoriality of the Human Rights Act. (And step forward Lord Philips, the originalist)

Today the Supreme Court delivered one of their most important decisions since their formation last year by overturning the decision of the Court of Appeal regarding the territoriality of the Human Rights Act 1998. For the summary and judgment of the Supreme Court, click here.

Questions are already being asked about whether the decision is binding, as one commentator has opined that the judgment is obiter, and thus not binding on lower courts and future decisions. If so, the 127 page judgment is a spectacular dissertation by the nine justices. I do not wish to discuss the obiter / ratio nature of the judgment, save to say that even if the judgment (or parts of it) are deemed to be obiter, then it will take a courageous judge to depart from powerful obiter from nine supreme court justices. There is dicta and dicta.

As one person retorted when I asked them their opinion on the decision, “well why join the army then?”. This retort is as ridiculous as it is ignorant. Nevertheless, it highlights the need to set out the facts of this sad case unambiguously. Private Jason Smith was deployed for service in Iraq shortly after the invasion in June 2003. By August the temperature in the shade was exceeding 50 degrees centigrade. On 9 August he presented nausea and dizziness; however over the next few days he was employed on various duties off the base. On 13 August he collapsed and died of hyperthermia.

Back to the “jurisdiction issue”. Article 1 of the ECHR provides:

“The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section 1 of this Convention”.

Private Smith’s mother issued proceedings invoking Article 2 of the ECHR – the right to life. Both the High Court and the Court of Appeal accepted that soldiers abroad serving in Iraq could enjoy the protection of the Human Rights Act 1998, both in and out of their base or military hospital. The Supreme Court, by a majority of 6-3, disagreed. Led by Lord Philips, the majority held that the jurisdiction under Article 1 of the ECHR was limited to the military bases, hospitals and detention centres (as per Al-Skeini).

Lord Collins went further, stating that there are three exceptions to the territorial notion of the jurisdiction of Article 1: a) territorial jurisdiction by a state over the territory of another contracting state; b) extensions of territorial jurisdiction by analogy; c) commonsense extensions to fit cases which plainly should be within the scope of the Convention. He accepts that extension of jurisdiction to military bases and hospitals falls within these exceptions. Nevertheless, Lord Collins holds (or merely thinks!) that “there is no basis in case-law, or in principle” to extend the jurisdiction to the entire armed forces abroad.

Lord Philips focuses his conclusions on the precedents of Bankovic, Al­-Skeini and Gentle. Whilst I accept that our supreme court must seek to follow the principles of stare decisis and apply this accordingly. But what about allowing our law to evolve? Should this not be the real function of our new “supreme” court? Lord Philips, erroneously in my opinion, provided a rather originalist construction of the European Convention. He held that the founding fathers would not have wanted to extend the Convention extra-territorially after the horrors of the Second World War. Lord Mance, dissenting, rubbishes this opinion. He claims that the scope and application of the Convention would “probably surprise its founding fathers in many respects”.

Lord Mance, who provided the main dissenting opinion, considered that as an occupying power in Iraq, the UK had an absolute power under international law over the safety of its forces. This, he went on to say, was not restricted to Iraq (or Afghanistan), but depended on a reciprocal bond of authority and control. Lord Mance is of the belief that the Strasbourg will hold that the armed forces of a state where within the meaning of Article 1 “wherever they might be”.

The territoriality of the Human Rights Act is the central issue of the appeal to the Strasbourg court in the case of Al-Skeini. Subject to the decision in this case, it looks more than likely that the Smith case will also reach Strasbourg in years to come. All the justices accepted that the Strasbourg court was the proper tribunal to resolve this issue. Nevertheless, it was incumbent upon them to decide this matter and await Strasbourg’s concurrence or dissent.

For me, it is baffling that our armed forces can enjoy human rights protection whilst on base, ostensibly safe from the enemy, yet they enjoy no protection when they enter battle.  Or as Lord Mance opines, it is “unrealistic” to distinguish between the existence of protective duties of the UK towards its armed forces at home and abroad. Absurd and illogical. The relationship between the UK and its armed forces, Lord Mance says, is seamless. The protection it affords its troops is evidently not. The relationship should not be territorial, it should be universal.

The decision of the Strasbourg court in Al-Skeini, I hope, will bring clarity to this issue and the right conclusion. However, the problem remains that the human rights sceptics (or Eurosceptics, or xenophobes) will continue to disregard the decisions of the European Court as intervening in our sovereignty. The Supreme Court missed an opportunity to support and strengthen the HRA.