They’ve got the robes. They’ve got the spanking new court. So why don’t our judges have a bit more confidence in the British justice they dispense?
Today, the Supreme Court held – by 6 to 3 – that, whilst UK soldiers may claim human rights on a base abroad, they cannot when on duty outside it. Right decision. Wrong reason.
The case concerned the tragic death of a private, who died of heat stroke in Iraq having failed to adjust to the searing heat. He joins a long list of brave soldiers let down by the last government’s failure to prepare properly for conflict. But expanding human rights law is not the answer.
The High Court had delivered a quixotic judgment, extending the right to life (Article 2 of the European Convention on Human Rights, via the Human Rights Act) to elevate a wide range of expansive negligence claims by soldiers to the status of a ‘human right’. The court ignored the negotiating records of the Convention and the absence of precedent, supporting its novel ruling with passing references to the Charge of the Light Brigade. The Supreme Court overruled both the High Court and Court of Appeal, sticking to the previous case-law that distinguished responsibilities of the UK government for its bases from the wider theatre of conflict.
That decision was right, for four reasons. First, existing procedures of inquest, investigation and where necessary inquiry provide due accountability for broader MoD negligence – as inquests have shown in relation to Iraq and Afghanistan. Second, judicial legislation makes the law unpredictable for everyone that has to rely on it. In this case, it leaves commanders looking over their shoulder at potentially ever-expanding legal liabilities, which distracts from the effective conduct of military operations - and may put troops at even greater risk. Third, it is the job of the courts to apply the law, not create it on a whim - judges have no democratic mandate to make new law. Fourth, these kinds of cases place additional financial burdens on the tax-payer – again, delicately-balanced decisions on the allocation of finite public resources should be decided by elected representatives, accountable for their decisions. Do you want the MoD wasting millions defending litigation, or using the money to pay for proper equipment for troops in the field?
The present claim is the latest of human rights ‘inflation’ driven by judicial legislation - both at the European Court of Human Rights Strasbourg, and in the UK courts under the Human Rights Act. We have seen extended rights to sue the police, for failing to protect people from violence, that mean officers spend £20 million per year protecting gangsters from each other. Yet our overstretched police are now incapable of protecting juries. So, for the first time in 400 years, British justice recently dispensed with the right to trial by jury in a common or garden robbery case. The human rights bandwagon is robbing Peter to pay Paul. So too, the UK courts under the Human Rights Act have extended restrictions on deportation, well beyond the scope of any Strasbourg ruling. It is one thing to block deportation of a criminal or terrorist suspect, where he risks torture if returned home, as required by Strasbourg. But many more now claim the ‘right’ to stay to avoid disruption to their family life in Britain, pursuant to novel precedent under the Human Rights Act – a factor that adds to pressure to introduce draconian measures at home, like control orders and prolonged pre-charge detention.
So, today, the judges got it right. But their decision was based on flawed reasoning. The Court, presided over by Lord Phillips, said that the European Court in Strasbourg was the proper place to decide whether this ‘novel’ claim should be upheld. In that case, what a waste of time going through three British courts. It is remarkable that, now established as a fully-fledged Supreme Court, our judges did not have the courage of their own convictions. Equally, they failed to understand that Strasbourg is not a court of appeal. As Director of Public Prosecutions, Keir Starmer, writes in his human rights text book, Strasbourg "has no role unless the domestic system for protecting human rights breaks down", which it clearly has not in Britain.
Our judges, used to adhering to precedent under the common law system, are far too ready to defer to Strasbourg - when it is neither required by the Convention, nor desirable in practice. The logic of this latest ruling only strengthens the case for a Bill of Rights in place of the Human Rights Act – to help re-focus British judges on the job of dispensing British justice.