The Round-Up: Rights in war, Rights at work, Rights in marriage

20 August 2017 by Thomas Beamont

The mother of a British soldier who was killed in a roadside bomb while on duty in Iraq has received an apology from Defence Secretary Sir Michael Fallon. Sue Smith’s son, Pte Phillip Hewett, died while travelling on patrol in a lightly armoured “snatch” Land Rover in July 2005.

Following a settlement of the case, Sir Michael has written to Ms Smith:

“I would like to express directly to you my deepest sympathies and apologise for the delay, resulting in decisions taken at the time in bringing into service alternative protected vehicles which could have saved lives.”

What did Ms Smith allege?

The circumstances around Pte Hewett’s death have been the subject of litigation for the last 6 years.

Sue Smith first brought proceedings against the Ministry of Defence in 2011. She alleged that the Ministry of Defence (“MoD”) breached article 2 of the European Convention on Human Rights (“ECHR”) by failing to take measures which it might reasonably have been expected to take in light of the risk to life of soldiers who were required to patrol in Snatch Land Rovers.

Sue Smith’s arguments included that better vehicles should have been used by the MoD for her son’s patrol, and that the investigation of a bomb blast which led to Pte Hewett’s death should have been led by better-armoured vehicles.

Who may judge in the theatre of war?

Owen J in the High Court struck out the claims on the ground that Hewett was not within the jurisdiction of the UK when they died. This meant that the ECHR did not apply to any alleged failure on the part of the MoD. Sue Smith appealed to the Court of Appeal, but her appeal was unsuccessful on the same ground.

The tide turned in this case when Ms Smith appealed to the Supreme Court in 2013. The justices in this case, summarised in this blog by Rosalind English, disagreed with their counterparts in the court below.

The majority judges in the Supreme Court held that the soldiers were within the UK’s jurisdiction at the time of their death. They observed that a state has jurisdiction over local inhabitants outside its jurisdiction (e.g. civilians in Iraq) because it exercises authority and control over them. The state also exercises authority and control over its soldiers through the chain of command. Therefore, by analogy the soldiers were under the UK’s jurisdiction. This meant that human rights law enshrined by the ECHR was capable of applying to the actions by the MoD surrounding their deaths.

The publication of the report by Sir John Chilcot in July 2016 was damning for the MoD. It described that the department had been aware of the vulnerability of Snatch Land Rovers, and had failed to provide more heavily armoured vehicles, as Ms Smith had argued in 2011.

The letter from Sir Michael to Ms Smith ends:

The government must and will ensure that our armed forces are always properly equipped and resourced.

Ms Smith’s efforts in fighting the case to the Supreme Court have ensured that the ECHR can be used to test such commitments in the courts.

In the courts

R (on the application of UNISON) v Lord Chancellor

The Supreme Court has handed down a highly important judgment concerning fees payable by those accessing employment tribunals. UNISON, the trade union, challenged the imposition of fees of up to £1,200 in 2013. The Government had claimed that it would decrease the likelihood of malicious and weak cases from being brought to tribunal.

The judgment is a significant development in the law of, in the words of Lord Reed who gave the leading judgment, “the right of access to justice”. The judgment is wide-ranging, taking into consideration the importance of tribunals as the only forum in which to bring a claim relating to an employment dispute, the fee structure and amount, and the fall of up to 70% in the number of cases being brought after the introduction of the fees.

Read Dominic Ruck Keene’s analysis of the case on this blog.

In Re X

A judge sitting in the Belfast High Court has dismissed a petition regarding the recognition of same sex marriage in Northern Ireland. A man who entered into a same sex marriage in London complained that his rights under the Convention were violated by virtue of the fact that in Northern Ireland the relationship is only recognised as a civil partnership. A petition was also brought by Grainne Close and Shannon Sickles, and Chris and Henry Flanagan-Kane. At time of writing, only the press statement relating to the anonymous petitioner was available.

In England and Wales, the Marriage (Same Sex Couples) Act 2013 recognises same sex marriage in law. X and his partner live in Northern Ireland, and sought a proceedings to seek a declaration that his marriage in London is a “valid and subsisting marriage” under the law of Northern Ireland.

However, the law of marriage is devolved to the Northern Ireland Executive and Assembly under the Northern Ireland Act 1998. Despite voting by majority to introduce same sex marriage, special voting arrangements in the Assembly mean that the majority is not sufficient to give the vote effect.

Further, the Strasbourg court has held that same sex marriage is not within the scope of Convention rights. While states may provide for it, they are not obliged to do so. It is therefore unlikely that the Strasbourg Court would take a different view in light of its consistent rulings.

The judgment comes only a few weeks after uniformed Gardaí from the Republic of Ireland marched alongside members of the Police Service of Northern Ireland at a gay pride parade in Belfast.

In the news

The Independent reports that the UK has been ranked number 40 in the latest Reporters Without Borders index of press freedom. The report alleges a “worrying trend” in the UK in regards to the freedom of the press. It describes a “heavy-handed approach…often in the name of national security” and singles out the Investigatory Powers Act 2016, known as the ‘Snooper’s Charter’ to its detractors, for criticism. The report argues that the Act offered “insufficient protection mechanisms for whistle-blowers, journalists and their sources, posing a serious threat to investigative journalism.” Jo Moore has written for this blog about a study which raised similar concerns around journalists’ ability to protect their sources.

The Guardian reports on the potential role of Artificial Intelligence in ensuring the protection of human rights. Researchers in University College London have built a computer which has analysed 584 cases decided by the European Court of Human Rights (see our post on this study). The cases concerned article 3 (the prohibition of torture and inhuman and degrading treatment), article 6 (the right to a fair trial), and article 8 (right to respect for private and family life, home and correspondence.) The computer reached the same conclusion as the judges in Strasbourg in 79% of cases. For now, EU data protection regulation provides the right not to be subject to an automated decision. This talk by Richard Susskind on the future of AI in law explores similar issues.

Rights Info reports on the new Data Protection Bill and its implications on human rights in the UK. The article considers the relevance of data protection law to human rights, the current proposals, and the effects of the so-called Great Repeal Bill on data protection and human rights in the UK.

More:

• Richard Susskind on how disputes may be handled by systems, rather than humans, in a few years’ time

by Thomas Beamont