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British troops will lose human rights protections

Civil liberties lawyer hits out at the government for misleading the public over human rights claims

13 October 2016

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Plans to temporarily withdraw from the European Convention on Human Rights are ‘spin and misinformation’ to trick the public as human rights protections that benefit British soldiers are removed, a leading solicitor has argued.

Making the announcement at the Conservative party conference last week, the government heralded the ‘landmark measure’ aimed at protecting the UK’s armed forces from ‘persistent legal claims in future overseas operations’ by derogating from the ECHR.

The prime minister, Theresa May, attacked ‘activist, left-wing human rights lawyers’ for bringing legal claims against British soldiers, while the secretary of state for defence, Michael Fallon, claimed the legal system had been ‘abused to falsely accuse’ British troops.

However, the plan to derogate from article 2 of the ECHR would impact on the human rights protections won for soldiers while in action abroad, according to the lawyer responsible for securing human rights protections for UK soldiers fighting in conflicts abroad.

‘Reading the MoD press release I was struck by the spin and how, by not admitting that their plan also involved removing protections from soldiers, the briefing amounted to misinformation,’ said Jocelyn Cockburn, civil liberties partner at Hodge Jones & Allen.

‘Soldiers are intentionally put in high risk situations and knowingly take risks to safeguard the lives of others. Human rights do not change this, however, article 2 requires that when putting troops in danger the MoD must take reasonable steps to protect them from known risks to life. This duty to protect is something the MoD have fought very hard to deny.’

She continued: ‘It can be brutally difficult to get the truth from the MoD and this latest move appears to be part of a concerted campaign aimed at restricting the ability of soldiers and their families to hold the government to account for equipment and other failures.’

The recently published Chilcot report commented on the ‘wholly inadequate’ preparation for the Iraq war, both before and after the invasion, criticised failures by the military to address equipment shortages, and highlighted the need to replace Snatch Land Rovers with more heavily armoured vehicles.

The defence secretary, Fallon, accepted the findings, acknowledging in the House of Commons that his department had ‘failed to adapt to the changing situation on the ground and there were significant equipment shortfalls for our troops’. The MoD has since stressed it is learning lessons and recently stated it will ‘create a culture that does not stifle debate and challenge’.

In the 2013 Supreme Court case of Smith & Ors v Ministry of Defence, Cockburn secured a landmark victory for the families of soldiers killed by roadside bombs while travelling in the poorly armoured Snatch Land Rover vehicles - or ‘mobile coffins’, as they were nicknamed by soldiers - referenced in Sir John Chilcot’s report.

The judgment means the MoD owes a legal duty to take reasonable steps to safeguard the lives of troops when deployed abroad. However, the newly announced plans would seemingly remove this protection.

‘It is difficult to see how the decision to remove human rights protections from our troops at times of overseas interventions fits with the MoD’s supposed willingness to learn lessons,’ said Cockburn. ‘Its actions do not reflect this and certainly no apology to the Snatch Land Rover families has been forthcoming, despite the findings of Chilcot.’

The human rights lawyer observed that the government’s mud throwing at ‘ambulance chasing lawyers’ and ‘human rights gone mad’ can ‘obscure the real issues’.

‘Of course the MoD would find it easier to operate without legal scrutiny but this is not in the national interest and it is certainly not in the interests of our soldiers,’ she added. ‘Without the ability to hold the government to account for their safety record there is a serious risk that standards will not improve and soldiers’ lives will be lost unnecessarily.’

John van der Luit-Drummond is deputy editor at Solicitors Journal john.vanderluit@solicitorsjournal.co.uk | @JvdLD

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