The image is of Susan Smith, the mother of Pte Phillip Hewett who died on 15 July 2005 when his Snatch Land Rover was destroyed following the detonation of an IED. She took the MoD to court along with the families of Cpl Stephen Allbutt and Pte Lee Ellis, using Article 2 of the Human Rights Act. You can read her story here.

Emma Norton is the Director of the legal charity, the Centre for Military Justice. The charity provides legal advice, advocacy and other support to people in the Armed Forces that have suffered bullying, sexual harassment, racial discrimination or other abuse or neglect. The CMJ also supports bereaved military families and undertakes wider education, policy work and campaigning on issues affecting the rule of law and human rights in the military.

Please note, this is a guest blog and views expressed in this blog do not necessarily reflect the views of BIHR.

The Government likes to suggest that the Human Rights Act (HRA) is bad for the Armed Forces. Recent examples of this abound: see the Justice Secretary’s recent comments about British soldiers that are apparently being ‘dictated to’ by Strasbourg judges; or our Minister for Defence People and Veterans’ efforts to limit the scope of the HRA overseas; or the narrative around the Overseas Operations Act, passed earlier this year, that suggested there was an ‘industry’ of vexatious claims against soldiers.

 

None of this is new of course. I have been working in the human rights sector since 2000, the year the HRA came into force, and for many years the Armed Forces has provided fertile ground for various myths and misrepresentations about the HRA to be spun, whenever the prevailing government feels the need to throw red meat to certain quarters.  

 

The fact is that the HRA has been immensely beneficial to the Armed Forces. The CMJ is running a short series of blogs prepared by service personnel or their families themselves, explaining how the HRA helped them, and how the HRA brought about much needed reforms that have had the effect of improving service life. You can read some of those stories here .

 

They include:

 

  • The Deepcut families, that used the HRA to finally hold the Army to account over the deaths of their children, after years of stone-walling, revealing a toxic, abusive and out of control camp.

 

  • The Ellement family, that used the HRA to expose appalling attitudes to sexual violence in the Royal Military Police, bullying and a lack of support for vulnerable people.

 

  • The Smith family, that used the HRA to expose how serious equipment failures meant that their son had little hope of survival when he came under attack in Iraq.

 

  • The veterans that used the HRA to challenge the ‘gay ban’ and force the Ministry of Defence to change its outdated and backward attitudes towards LGBTQ+ people.

 

  • The rape survivor that used the HRA to force the Government to place the issue of how military rape cases should be handled before Parliament, and secured a review of all Armed Forces policies on the handling of sexual assault.

 

I could go on. There are so many other stories. They all have two things in common. First of all, each case led not only to an important outcome for that individual or their family, but also to wider policy reform that improved things for lots of other service people. And secondly, it was only the HRA that enabled the case to be brought – without the HRA, those reforms would simply never have happened.

 

For a detailed analysis of the application of the European Convention on Human Rights overseas, see our briefing to the Independent Review of the Human Rights Act, that was commissioned by the Government last year.  The law in this space is complex and the cases that have been brought seeking to apply the ECHR overseas have been badly misrepresented over the years by people that ought to know better. Statements have been made that inaccurately describe the law and create the impression that the HRA applies wherever British forces are deployed overseas, or that soldiers will have to take lawyers onto the battlefield with them. That is simply not correct. The judgments are measured and reasonable and at each stage the courts have recognised the limitations of their jurisdiction. There has not been a single case where a commander’s decisions on the battlefield has been litigated.

 

Twice a year the CMJ lectures at the Defence Academy. We consistently find there people that are genuinely interested and engaged in these issues. Our experience is that service personnel do not want to work within a system where human rights are not protected – that is not what they signed up for. They do not want to be the victims of mistreatment, they do not want to commit acts of abuse, they do not want to serve alongside people that abuse and they want to be assured that wrongdoing, where it happens, is effectively and quickly dealt with through an effective and fair system of justice.  

 

For those for whom the state looms large in their lives, the HRA is absolutely vital. That is why such significant numbers of HRA cases have been brought by children in care, people in NHS hospitals, people in detention, people subject to immigration control – and service personnel, whose lives are tightly controlled by the State in a way that civilians find hard to imagine. They need and deserve its protection too. The Government’s proposals to dilute the protection of the HRA are bad for the Armed Forces and bad for all of us.