The Fog of Juridification, Functionality and Everything Foreign

Wounded soldiersWe are delighted to welcome this post from Jane Rooney on the recent report published by think-tank Policy Exchange on apparent  human rights infringements during battlefield operations. Jane is the Deputy Convener of Law and Global Justice at Durham and Ph.D. candidate at Durham Law School. On 18th October 2013, think tank Policy Exchange published a report entitled, ‘The Fog of Law: An introduction to the legal erosion of British fighting power’[1] co-authored by Thomas Tugendhat and Laura Croft and which will inevitably form the basis of the next Strategic Defence and Security Review. The report was written as a reaction to Smith & Ors v The Ministry of Defence[2], a case brought to the Supreme Court by relatives of British soldiers who died whilst serving in Iraq, with the relatives successfully claiming for compensation under the Human Rights Act 1998. The report denounces the decision in this case, stating that it represents the culmination of a ‘legal siege’ over British military operations, ‘eroding freedom of movement on the battlefield.’[3]

The recommendations of the report can be summed up as proposing that Parliament legislate on Combat Immunity; that Parliament legislate to exempt the Ministry of Defence from the Corporate Manslaughter and Corporate Homicide Act; that the United Kingdom (UK) derogates from the European Convention on Human Rights (ECHR) during deployed operations; and that legal aid should be removed from lawsuits brought by foreign nationals against the UK government. The underlying narrative of these proposals is, firstly, that Parliament should intervene to control the ‘judicial activism’ or ‘judicial creep’ of the Courts and secondly, that ‘foreign courts’ should not be able to control domestic decision-making and foreign nationals should not be able to access English domestic courts, which form familiar rhetoric in the Conservative party agenda. But what is the main problem that the report intends to fix?

The report states that the problem is broadly that there is a creep of civilian law into the military and that international humanitarian law (IHL) provides the proper balance between protecting individuals and serving military effectiveness. In a recent blog post on the report[4] it was highlighted that the civilian law habitually applies in times of war and that they are not mutually exclusive from one another. Instead, that author pointed out that the ‘real problem’ was the effect of the extensive extraterritorial application of the ECHR and the indeterminate interrelationship between international human rights law and IHL. However, they do not constitute the problem so much as they constitute the reasons for a particular problem and again we must ask, what is the problem identified by the report?

The answer is in the Smith case itself. Two sets of claims were brought against the Ministry of Defence (MoD), the ‘Challenger claims’ and the ‘Snatch Land Rover claims’. The ‘Challenger claims’ were brought under negligence in respect of the death of one party and the injury of two others, which occurred during a friendly fire incident in a Challenger II tank taking part in the offensive on Basra in 2003. The ‘Snatch Land Rovers’ claims were brought under the Human Rights Act 1998 alleging that the MoD was in breach of the obligation to safeguard life protected by ECHR article 2 due to failing to take reasonable measures in light of the real and immediate risk of soldiers with patrolling obligations. In both instances, the MoD was found to have failed to provide adequate equipment for the protection of soldiers’ lives. In particular, Snatch Land Rovers had no protection against improvised explosive devices (IEDs) and having been withdrawn from the battlefield as the result of the death of soldiers seven months previous to the incident in question, were re-introduced by the MoD without further enquiry. The report seeks to highlight the dangers that do, and furthermore could, potentially flow as a result of enabling servicemen or women to claim against the MoD either by evading the law on Combat Immunity or claiming under the Human Rights Act.

What happens when servicemen or women or their relatives are allowed to claim against the MoD? What detriment ensues?

The first argument is that it will be expensive.  In the report, the compensation costs are not at the forefront of their concerns. It is the cost of the lawyers that will be required to act on behalf of the MoD which are of greatest concern.[5] With legal costs projected as amounting to £36 million a year, the litigation that ensues from claims against the MoD constitute another form of ‘lawfare’ attempting to cripple British security and military effectiveness.[6] Other costs identified in the report predominantly concern inquiries into the rights violations of foreign nationals in war zones which detract from the main subject matter at hand, which is whether Smith will result in an onslaught of compensation claims from injured servicemen and women and their relatives which will be financially impossible for the MoD to respond to. No figure is provided for the latter kinds of claims. We can deduce from this that this is not the main concern flowing from the Smith case. We need to look elsewhere to establish why the Smith case is so damaging to the military effectiveness of the British forces.

There are a number of assertions in the report which are paramount to explaining what the main concern is arising from the report:

“Lawsuits undermine the fundamental rationale for an armed force: the transfer of physical risk. At its core, this is what the military does. Volunteers…take up the burden of protecting society and remove the requirement for self-defence from the wider community.”[7]

Lord Hope’s reference to statements from the 2006 Parliamentary Assembly of the Council of Europe, that “members of the armed forces cannot be expected to respect humanitarian law and human rights in their operations unless respect for human rights is guaranteed within army ranks,”[8] is interpreted by the report as claiming that servicemen and women cannot voluntarily surrender their ECHR rights, and that the army cannot protect the rights of others if they do not have rights themselves.[9] It finds Lord Hope’s statement abhorrent stating that it is “surely wrong and demeaning to assert that Service personnel who voluntarily sacrifice some of their rights, albeit temporarily, are incapable of upholding the rights of others as a result.”[10]Aside from a blatant manipulation of words, there is the question of whether the servicemen and women (or their relatives) who attempt to bring actions against the MoD under the Human Rights Act did conceive of themselves as voluntarily surrendering all of their rights? It is most probable that they did not. But the entire assumption is that when servicemen and women conceive of themselves as having rights they pose a “mortal threat to the culture and ethos of the military which cannot be easily reversed.”[11]

Having deduced the main substantive point of the report it is particularly important to acknowledge how the report has attempted to detract from what could be conceived as a very unpopular assertion: that British servicemen and women have no right to have rights.

Firstly, the report is not about human rights concerns detracting from the obligations of the military during life or death situations: the “removal of the protections once granted to those who risked all for their country”[12] or to ensure that “commanders from the most junior upwards understand that decisions made in the confusion of battle will not be held to a standard designed for those who have never known such pressures.”[13]

 Secondly, it is not about the expansive approach taken to the extraterritorial application of the ECHR. Indeed the decisions of Al Skeini and Al Jedda represented a leap forward in extending the jurisdiction of signatories to the ECHR to protect individual rights, providing the flexible ‘public powers’ model which enabled for the requisite jurisdiction to be found with regard to isolated rights violations abroad, rather than merely allowing jurisdiction to be found when a state had ‘effective control’ of the territory of another state and therefore responsible for all rights violations in that territory, a much higher threshold to meet. However, engaging in an analysis of how one could attempt to limit the liability of states under the ECHR when acting abroad by invoking Article 15 ECHR, which allows for a state to derogate from most rights in ‘times of war or other public emergency threatening the life of the nation’, is a point of concern.[14]

The extraterritoriality jurisprudence was invoked in order to explain how it was that the Smith case ever became possible and we still have to make a value judgment about whether we agree or disagree with what Smith entails. Furthermore, applying Article 15 extraterritorially is not an impossibility. The Court merely stated in Bankovic, remarking upon the extraterritorial application of Article 15, that “Article 15 itself is to be read subject to the “jurisdiction” limitation enumerated in Article 1 of the Convention.”[15] Because of the expansion of the concept of jurisdiction under the ECHR, Article 15 could potentially be applied in the circumstances in Smith. (Even though on closer examination, ‘threatening the life of the nation’ could infer that Article 15 could only be applied domestically). One must think of the implications of enabling this provision to be effective. It would represent a very serious roll-back in human rights protection and the enforcement of state responsibility when states act abroad. Again, we must shift the emphasis away from the fact of extraterritoriality, which has not necessarily proved to be detrimental to military effectiveness itself, and look more closely at the ‘problems’ that purport to ensue from what it has enabled – the Smith case.

Thirdly, the report is not about ‘juridification’ of the military.[16] It is not about the myriad of assaults that the judiciary has allegedly committed against the military from many different fronts, with one facet being that it empowers servicemen and women to bring actions against the MoD. It is about the threat of a changing ethos which is admittedly facilitated by the judiciary, an ethos which propounds the humanity of soldiers fighting on the ground and the empowerment of those individuals to see themselves as such. Furthermore, the term ‘juridification’ is used to imply that it is self-evidently a bad thing and it is a reason not to trust any eventualities that flow from it. It is a reason not to afford rights to servicemen because those rights come from juridification. It is necessary to look behind this term and look at the substantive results of it in order to evaluate whether it does encroach upon the effectiveness of the military.

A smoke screen of juridification, foreign courts, foreign nationals, and functionality have effectively obscured the main substantive point of the report. It is necessary that the fog is parted and that the newly found rights protection for British servicemen and women, who are afforded inadequate equipment for their own physical safety when carrying out military operations abroad, remains intact.


[1] Thomas Tugendhat and Laura Croft, ‘The Fog of Law: An introduction to the legal erosion of British fighting power’, Policy Exchange 2013

[2] Smith & Ors v The Ministry of Defence [2013] UKSC 41 (19 June 2013)

[3] The Fog of Law (n 1, p. 11)

[4] Aurel Sari, ‘Better Get A Lawyer: Are Legal Constraints Defeating Britain’s Armed Forces on the Battlefield?’ http://www.ejiltalk.org/author/asari/

[5] The Fog of Law (n 1, p. 35)

[6] Ibid.

[7] Ibid. p. 18

[8] Lord Hope, para 53, 54: Smith and Others v The Ministry of Defence [2013] UKSC 41

[9] Ibid. p. 31

[10] Ibid. p. 31

[11] Ibid. p. 11

[12] Ibid. p. 10

[13] Ibid. p. 11

[14] Better Get a Lawyer, n 4

[15] Banković and Others v. Belgium and Others [GC] (dec.), App. No. 52207/99, para 62

[16] Ibid. p. 16

The Fog of Juridification, Functionality and Everything Foreign

The Dissipation of UK Human Rights Law

In a recent collection of essays on critical legal thinking the editors claim that ‘not only does law increasingly resemble politics, but politics increasingly resembles law’. What emerges is an ‘indistinct fuzzy middle zone’ in which powerful Governments are often glad to operate. However, as law comes to touch on more and more areas of life so too do we witness the ‘dissipation of the legal form in ways that allows power to assert a more pervasive grip on life’. This dissipation, which strips away the rules of legal argument, the procedures of legal institutions, and even the fundamental principles of the legal system, is becoming a hallmark of the current Government’s approach to human rights law. Continue reading “The Dissipation of UK Human Rights Law”

The Dissipation of UK Human Rights Law

Resource Allocation Revisited: Higher Education Fees and the Courts

Judges in England and Wales have long been sensitive of the boundaries of their authority under the Judicial Review jurisdiction. Lord Hope recently sought to highlight the limits of the judicial role in the Axa Insurance (2011) case, by contrasting it with the focus of Parliament (at [49]):

While the judges, who are not elected, are best placed to protect the rights of the individual, including those who are ignored or despised by the majority, the elected members of a legislature of this kind are best placed to judge what is in the country’s best interests as a whole.

Today the High Court provided a nuanced judgment in a judicial review action brought over the raise in university tuition fees to a maximum of £9000 which will be introduced in September 2012. Although the claimant teenagers (Katy Moore and Callum Hurley, pictured above left) were unsuccessful in their bid to have the Court quash the Higher Education (Higher Amount) Regulations 2010 which introduced the fees, the judges did recognise that ministers had failed to fully carry out some of their Public Sector Equality Duties (PSEDs), which require that consideration be given to whether the decision to increase tuition fees had a disproportionate (and hence, potentially indirectly discriminatory) impact on protected groups within society. Continue reading “Resource Allocation Revisited: Higher Education Fees and the Courts”

Resource Allocation Revisited: Higher Education Fees and the Courts

Dale Farm: Why Human Rights Needs to Infiltrate the Planning Process

The impending eviction of travellers from Dale Farm in Essex, delayed again but scheduled for Friday or Saturday, raises the question of whether Basildon Council’s actions will be a violation of the European Convention on Human Rights, as directly applied in the UK Human Rights Act 1998. There have been a number of cases involving Travellers and Roma before the European Court of Human Rights in Strasbourg, but while the Roma have been relatively successful in defending their rights, the Travellers have won only one case. Continue reading “Dale Farm: Why Human Rights Needs to Infiltrate the Planning Process”

Dale Farm: Why Human Rights Needs to Infiltrate the Planning Process

The UK Supreme Court and the right of access to a lawyer in Scotland

The UK Supreme Court has found in  Cadder v Her Majesty’s Advocate that the use of material obtained in a police interview in Scotland without legal representation is in breach of Article 6(1) and 6(3)(c) of the ECHR.

Under the Criminal Procedure (Scotland) Act 1995, a police constable may detain a person whom he has reasonable grounds to suspect has committed an imprisonable offence for up to six hours, during which time he may be questioned. Although the detainee is entitled to have a solicitor informed of his detention, he has no right of access to a solicitor. Cadder had been detained and interviewed without a lawyer being present, and he made a number of admissions which were admitted at trial. He was convicted in the sheriff court in Glasgow.

The relevant ECHR case is Salduz v Turkey where the Grand Chamber of the European Court of Human Rights unanimously held that Articles 6(1) and 6(3)(c) of the ECHR were breached by virtue of Salduz not having legal advice when in police custody. Nevertheless, in a subsequent Scottish case, Her Majesty’s Advocate v McLean, the High Court of Justiciary (sitting with a bench of seven judges) held that Articles 6(1) & 6(3)(c) were not violated by the reliance on admissions made by a detainee who did not have access to a solicitor. This was predicated on the view that a fair trial was guaranteed by safeguards in the Scottish criminal process, such as the requirement that all evidence be corroborated and the absence of inference-drawing provisions. Cadder sought to appeal against his conviction, but leave to appeal was refused in Scotland based on McLean. Continue reading “The UK Supreme Court and the right of access to a lawyer in Scotland”

The UK Supreme Court and the right of access to a lawyer in Scotland

Guest Contribution: Farrell on Foy Case

Human Rights in Ireland is delighted to welcome this guest post from Michael Farrell, Senior Solicitor at FLAC.

The Lydia Foy case
Dr Lydia Foy is a transgender woman. She was born in Athlone and was registered at birth as a boy. Growing up she was confused about her gender identity but tried to live as a male. She went through university and qualified as a dentist and then got married and had two children. Gradually, however, she became more and more unhappy in her male role. She was diagnosed with Gender Identity Disorder in 1990.

It was a very difficult time for her. Her marriage broke up and she lost her job. She began the process of gender reassignment and had surgery in England in 1992. Since then she has lived entirely as a woman.

Dr Foy applied for a new birth certificate in her female gender in March 1993 but was refused by the Registrar General’s office. She changed her name by deed poll and was able to obtain a driving licence and a passport in her female name and giving her gender as female. She wanted a birth certificate, however, because birth certificates are constantly required as proof of identity and because it would be an official recognition of her as a woman. Continue reading “Guest Contribution: Farrell on Foy Case”

Guest Contribution: Farrell on Foy Case

New Human Rights Blog

1 Crown Office Row has launched a new blog, the UK Human Rights Blog. It will be authored by a junior, a silk and an academic member of chambers. They describe the new venture as follows:

For 10 years, 1 Crown Office Row, the Chambers of Philip Havers QC, have run the widely acclaimed free Human Rights Update service at www.humanrights.org.uk. This blog aims to expand on that service.

New Human Rights Blog

Human Rights & the UK General Election

And they’re off! The least surprising news story of the day so far has been that Gordon Brown has made the trip to Buckingham Palace to request that the Queen dissolve Parliament, effective next Tuesday (this is to allow the Digital Economy Bill to be rushed through Parliament in the next six days). A General Election will take place on Thursday 6 May.

There are two key human rights issues that may be affected by the outcome of this election – one of which will be of great concern to human rights advocates in Ireland. These are:

Human Rights & the UK General Election