I can now link to Collins J’s judgment in the case that received lots of media coverage the other day, on the right to life and troops in Iraq – although it looks as though some further observations from Collins J on the Gentle case are still being transcribed.
Reading the judgment does make you realise the media fuss was perhaps overdone: the controversy can only really be about Collins J’s suggestion at para. 20 that a soldier
does not lose all protection simply because he is in hostile territory carrying out dangerous operations. Thus, for example, to send a soldier out on patrol or, indeed, into battle with defective equipment could constitute a breach of Article 2. If I may take a historical illustration, the failures of the commissariat and the failures to provide any adequate medical attention in the Crimean War would whereas the Charge of the Light Brigade would not be regarded as a possible breach of Article 2. So the protection of Article 2 is capable of extending to a member of the armed forces wherever he or she may be; whether it does will depend on the circumstances of the particular case.
Yes, there is a potential danger here, depending on what approach is taken to deciding whether equipment is “defective”, and how Collins J bases his simple assertion that the Charge of the Light Brigade would not breach article 2, I don’t know.
But the actual facts of the case were about a soldier who became ill inside a British base in Basra where the army was clearly in control (at least then, August 2003). I don’t think there can be much doubt that that’s within British jurisdiction applying Al Skeini; perhaps Collins J’s additional observations will distinguish the facts here from those of Gentle.
From a military point of view there are two main considerations: a) defective equipment, and b) deficient equipment. The former referring to inadequacy of performance and the latter being inadequacy of supply.
The MoD has been castigated for failure in both matters. Whilst it might possibly be exonerated for failure of performance the Ministry surely should not be exonerated for failures of supply. I’m reminded of the Gulf Wars, where equipment did not reach those in need at the front directly as a result of logistical breakdown. Failures of the chain of supply ran all the way back down to the Ministry itself which on occasions did not issue instructions to suppliers and manufacturers of equipment.
Similarly, it took several years for the Ministry to set about providing appropriate armoured vehicles, despite the availability from various manufacturers, at home and abroad. In the interim, deaths and injuries continued relentlessly. It’s my view that there is certainly moral (if not legal) culpability on the part of those who should have been aware of the immediate dangers to the fighting man.
Have those on the ‘supply’ side neglected their Duty of Care, both in terms of the supply and the performance of equipment?
It is a disgrace that our service personnel are not being adequately supplied but should the solution to this lie via the courts? Parliament should be doing its job and taking incompetent Ministers to task. The courts now appear to be paying little or no attention to the traditional and historic role of Parliament.
Collins J’s reference to the Charge of the Light Brigade is interesting. That was one of the biggest military “cock ups” of all time. His Lordship’s dictum amounts to saying that utterly incompetent military leadership = no human rights protection. Incompetent political support = human rights protection. The military “top brass” ought to be worried because just where is the line between the two to be drawn?
One cannot help think that the Judges are entering into a battlefield where they are usurping the proper role of Parliament.
With respect, Peter, I think “usurp” is the wrong word. If Parliament does not step up, it should be no surprise when judges (often reluctantly, it seems to me) make such rulings.