MoD faces battle on troops’ rights

#1
THE government’s human rights watchdog, chaired by Trevor Phillips, is taking on the Ministry of Defence (MoD) in a test case to extend human rights laws to soldiers on the battlefield.

It will tell the High Court this week that all British soldiers have the right to life and that the MoD has “a duty of care” to protect them — even in the heat of battle.
Might be deep pockets time for the MoD, or wage cuts for the worker bees who knows....

The Times
 
#2
Seems like a few of the commenters don't understand it's about providing adequate equipment to do the job, rather than saying soldiers cannot be put into dangerous situations.

Personally, I don't see how people can disagree with this.
 
#3
AFAIK the MOD already has a reasonable duty of care for all employees including soldiers under employment legislation, and this extends further than just banning people from changing the lightbulbs in their office. What changes will this bring around?
 
#4
The whole point is that the MoD have to put soldiers in extremely dangerous situations, indeed potentially fatal ones. That does not mean that they should just accept that casualties will happen and take every measure to prevent injuries or fatalities from occuring.
If it costs more in fines and compensation for the MoD to not use the latest and most effective equipment then we shall see that equipment entering service a lot sooner than we do nowadays.
Because war is dangerous does not mean all precautionary and protective measures should not be deployed.
 
#6
They should be careful, too much pressure may force the MoD to seek exemption, at least from parts of the law, or under certain circumstances. IIRC it was discussed before, as said above there is already duty of care, both in law and under a moral obligation by the CoC.
 
#7
FNUSNU said:
Snatch is a prime example, an 'it'll do' attituse from the MOD but of no real use in protecting people from the threat.
Is this not due to be tested in the Courts sometime soon-I thought I read that the family of a soldier who died in a Snatch were taking moD/SoS to court over the incident.
 
#8
Below is the Equality and Human Rights Commission's press release about the court case. (I dont think they will mind it being quoted fairly fully).

Commission intervenes to extend protection to armed forces

8 March 2009

The MoD will have to provide greater protection to soldiers serving overseas if a legal intervention by the Equality and Human Rights Commission is successful. A positive ruling by the Court of Appeal could also mean that bereaved families would be entitled to information about exactly what happened to their loved ones.

The Commission is intervening in a Court of Appeal hearing, which begins on Monday 9 March, between the mother of Jason Smith and the Secretary of State for Defence. The case is significant as this is the first time the Courts will have considered how the Human Rights Act applies to British forces serving abroad.

At the appeal hearing, the Commission will argue that armed forces personnel serving overseas are protected by both Article 2 (right to life) of the European Convention and the Human Rights Act whether or not they are physically on an armed forces base.

This human rights protection has important implications for obliging the MoD to properly safeguard the lives of its troops, for example ensuring they have adequate equipment and medical facilities. It would also mean that future investigations into deaths similar to Jason Smith’s will have to be independent, open to scrutiny, and involve the family – who would be entitled to public funding.

John Wadham, Group Legal Director at the Equality and Human Rights Commission said: 'Our service personnel are required to lay down their lives for this country. In return, we should afford them the same human rights protection as every other citizen.

'Of course, we recognise that the armed forces are operating in dangerous situations. This is not about an unreasonable expectation that the MoD will protect their life at all costs in a combat situation. It is about providing a good duty of care to them to ensure they remain as safe as possible.'

'Where there has been a tragic loss of life in unclear circumstances like Jason’s, families are entitled to know what happened to their loved ones and what measures may be taken as a result to stop other families suffering the same fate. They should not be locked out of the process.'

Jason’s mother, Catherine Smith, said: 'I am very disappointed that the MoD has decided to appeal the court’s decision. How can it be right to remove human rights from soldiers when they are at their most vulnerable?'

Jocelyn Cockburn, a partner at Hodge Jones & Allen solicitors, who are representing Catherine Smith said: 'Catherine Smith has been put through what no parent should have to endure, firstly the tragic loss of her son and then several years of struggle to find out what actually happened to him. The way that the MoD conducted itself at Jason’s inquest led her to question whether there was something to hide about his death.'

Private Jason Smith was deployed to Iraq in June 2003. He repeatedly told army medical staff that he was feeling seriously unwell due to the temperature, which was in excess of 50 degrees Celsius, before reporting sick in August 2003. Four days later he was found lying face down, short of breath, confused and behaving erratically. He was taken to accident and emergency but sustained a cardiac arrest and was pronounced dead from hyperthermia within an hour.

Following a Coroner’s Inquest into her son’s death, during which the family were initially denied access to crucial documents relating to the circumstances of her son’s death, Catherine Smith sought a judicial review. At the review, the High Court ruled that the Human Rights Act applied to all armed forces personnel serving outside the UK whether or not the death took place on an army base.

The MoD accepted that the Human Rights Act applied to Jason Smith’s case as he died on a British army base. However, it is arguing that it does not apply to a British soldier who is off base and has appealed the High Court ruling. It is also arguing that inquests into soldiers killed should not be enhanced 'Article 2' enquiries which would require the coroner to investigate systemic failures.

Jocelyn Cockburn added: 'Catherine Smith’s main reason for bringing the judicial review challenge in the first place was to ask the courts to set a framework for how military inquests should be dealt with in order to reduce the stress caused to families by the process and to ensure that lessons are learned to avoid future deaths. This was achieved by the ruling of the High Court that the Human Rights Act applies to armed forces personnel where ever they are in the world. It is very important to her to defend this ruling in the Court of Appeal.'

Ends

...
Notes to Editors

The Equality and Human Rights Commission has intervened in this case to assist the Court given its expertise and statutory duties in respect of human rights.

Article 1 of the European Convention on Human Rights provides that rights and freedoms should be available to all those within the State’s jurisdiction. Article 2 deals with the right to life and provides that the State should safeguard life and take measures to investigate following a death. If forces serving abroad are not within the State’s jurisdiction under Article 1 then the duties under Article 2 do not apply.

Under the terms of the Human Rights Act public bodies have a duty of care to protect the rights of those under the Government’s jurisdiction. The Commission has intervened in this case to ensure proper protection of the human rights of armed service personnel serving abroad. This could lead to policy and procedure change within the MoD and other public authorities responsible for personnel abroad.

In this case the MoD would be under a positive obligation to safeguard the lives of its troops, such as ensuring that they have adequate equipment and medical facilities. It would also mean that they would have a duty to hold an enhanced investigation – which is independent, open to scrutiny, and involves the family, who would be entitled to public funding (subject to financial eligibility) - into deaths in circumstances where the MoD may be responsible.

The Equality and Human Rights Commission is a statutory body established under the Equality Act 2006, which took over the responsibilities of Commission for Racial Equality, Disability Rights Commission and Equal Opportunities Commission.

The Equality and Human Rights Commission is the independent advocate for equality and human rights in Britain. It aims to reduce inequality, eliminate discrimination, strengthen good relations between people, and promote and protect human rights.

The Equality and Human Rights Commission enforces equality legislation on age, disability, gender, race, religion or belief, sexual orientation or transgender status, and encourage compliance with the Human Rights Act. It also gives advice and guidance to businesses, the voluntary and public sectors, and to individuals.
 
#10
devexwarrior said:
FNUSNU said:
Snatch is a prime example, an 'it'll do' attituse from the MOD but of no real use in protecting people from the threat.
Is this not due to be tested in the Courts sometime soon-I thought I read that the family of a soldier who died in a Snatch were taking moD/SoS to court over the incident.
I may be wrong but I'm led to believe Snatch were deployed to Afghanistan in response to the largely ballistic threat at the time. That threat has now evolved into that of mainly IEDs, to which Snatch offer little or no protection - especially underneath.

I know the IPTs at Abbeywood are working their socks off trying to introduce new kit at the frontline which is capable of doing the job. This doesn't happen overnight because trials have to be done to ensure the kit will operate with all the add-ons (Bowman, Armour, ECM etc). It's no use sending a bit of kit straight to the front line which will definately protect the crew from an IED if, however, it is extremely unlikely to get anymore than 20 miles down the road before burning its clutch out due to the excess weight it's carrying. There is kit on the way but it needs to be trialled so all potential dramas can be ironed out and we don't just introduce a different life-endangering problem.

When you take a step back and look at the situation, the finger of blame can be pointed at a number of places. Are the ones at fault those who failed to identify the evolving threat until it was too late - leaving us in the situation we are now? Or is it those who decided that Snatch was what was needed over there? (Personally, I believe they were only acting on the information they were given regarding the threat in theatre and the funding available). Or, like me, do you think the blame lies entirely with the man who has been cutting the defence budget since 1997????

A-M
 
#11
Alpha-Mech said:
I may be wrong but I'm led to believe Snatch were deployed to Afghanistan in response to the largely ballistic threat at the time. That threat has now evolved into that of mainly IEDs, to which Snatch offer little or no protection - especially underneath.

I know the IPTs at Abbeywood are working their socks off trying to introduce new kit at the frontline which is capable of doing the job. This doesn't happen overnight because trials have to be done to ensure the kit will operate with all the add-ons (Bowman, Armour, ECM etc). It's no use sending a bit of kit straight to the front line which will definately protect the crew from an IED if, however, it is extremely unlikely to get anymore than 20 miles down the road before burning its clutch out due to the excess weight it's carrying. There is kit on the way but it needs to be trialled so all potential dramas can be ironed out and we don't just introduce a different life-endangering problem.

When you take a step back and look at the situation, the finger of blame can be pointed at a number of places. Are the ones at fault those who failed to identify the evolving threat until it was too late - leaving us in the situation we are now? Or is it those who decided that Snatch was what was needed over there? (Personally, I believe they were only acting on the information they were given regarding the threat in theatre and the funding available). Or, like me, do you think the blame lies entirely with the man who has been cutting the defence budget since 1997????

A-M
I tend to agree with you about where the blame lies. When you set up a culture of miserliness then you don't pave the way for experimentation and ennovation. Barnes Wallis had a problem getting the bouncing bomb trialled but that was more to do with the shere volume of new, innovative and hair-brained schemes around during WW2.
Until the Government decides that it must address this problem fully (and that means chucking an awful lot of money at it) then it is difficult to see, given the limited commercial applications of such vehicles, that a private company is going to finance such research.
 
#12
WhiteHorse said:
They should be careful, too much pressure may force the MoD to seek exemption, at least from parts of the law, or under certain circumstances. IIRC it was discussed before, as said above there is already duty of care, both in law and under a moral obligation by the CoC.
The current position is that the MOD has the normal employer's duty of care to its employees in normal peacetime situations including training. But when engaged in combat there is in law no duty of care owed by MOD to a soldier or by one soldier to another soldier. This has been tested a number of times in the courts a recent example being Ministry of Defence vs Mulcahy in 1996. It will be interesting to see whether the application of the Human Rights legislation/principles can change this position.
 
#13
Sending troops into war zones with inadequate equipment is indefensible. Their masters have a duty of care and sending a soldier out on patrol with defective equipment smacks of negligence, never mind "a breach of Article 2 of the Human Rights Act - the right to life."

Going back to the ruling on 11 April 2008: "The decision was a legal defeat for Defence Secretary Des Browne who also had his attempt to ban coroners from using critical phrases such as "serious failure" rejected. "

Mr Justice Collins makes a valid point " British servicemen and women were entitled to some measure of legal protection "wherever they may be", he said.
 

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