In The Supreme Court of the United Kingdom
ON APPEAL FROM HER MAJESTY’S COURT OF APPEAL (ENGLAND) CIVIL
DIVISION
Neutral Citation: [2012] EWCA Civ 1365
BETWEEN:
SUSAN SMITH
(on her own behalf and as the administrator of the estate of Phillip Hewett
deceased)
COURTNEY ELLIS
(a child by her litigation friend Karla Ellis) and another
COLIN REDPATH
(on his own behalf and as executor of the will of Kirk James Redpath deceased)
Appellants
-andTHE MINISTRY OF DEFENCE
Respondent
-and(1) THE EQUALITY AND HUMAN RIGHTS COMMISSION
(2) JUSTICE
Interveners
_____________________________________________________________
INTERVENTION ON BEHALF OF
THE EQUALITY AND HUMAN RIGHTS COMMISSION
_____________________________________________________________
INTRODUCTION AND OVERVIEW
1.
This written submission is made on behalf of The Equality and Human
Rights Commission (‘the Commission’) pursuant to permission granted on
1
24 January 2013. The Commission is grateful to the Court for the
opportunity to present an intervention in this appeal. It does so:
(i) pursuant to its statutory powers under the Equality Act 2006 ('EA
2006'), section 30(1) to intervene where proceedings are relevant to its
functions, which include materially, (a) encouraging and supporting a
society in which there is respect for and protection of each individual's
human rights (s 3(b) EA 2006); (b) promoting protection of human rights
(both under the European Convention on Human Rights (ECHR/’the
Convention') and other human rights instruments) (s 9(2) and 9(1)(c) EA
2006); and (c) encouraging public authorities to comply with Section 6 of
the Human Rights Act 1998 (‘HRA’) (s 9(1)(d) EA 2006),
and
(ii) in fulfilment of its role as the United Kingdom's National Human Rights
Institution. As such, the Commission has international law responsibilities
under paragraphs 3(b) of the Paris Principles (UN General Assembly
resolution 48/134)
‘to promote and ensure the harmonisation of national legislation
... with the international human rights instruments to which the
State is a party and their effective implementation’.
2.
The Commission's intervention focuses on the jurisdictional scope of the
HRA and the Convention, Article 1; and in particular, in what
circumstances the HRA protects members of the Armed Forces serving
outside the UK1.
1
The Commission's position on the article 2 issue has been set out elsewhere - in intervention submissions
in R(Smith) v Oxfordshire Assistant Deputy Coroner [2011] 1 AC 1 (‘Catherine Smith’), and Pritchard v UK App
No 1573/11; the third issue (combat immunity) is outwith its institutional expertise.
2
3.
In short, the Commission submits that members of armed forces are
under the effective jurisdictional authority and control of the state and
should be subject to the obligations and benefits imposed by the
Convention wherever they are in the world. Members of the armed
forces swear an oath of allegiance to the British Crown2. The EHRC
respectfully adopts the view of the Court of Appeal and the minority of
the Supreme Court in R(Smith) v Oxfordshire Assistant Deputy Coroner
[2011] 1 AC 1 (‘Catherine Smith’), that the relationship between the state
and its armed forces is based on a reciprocal bond and compact that
military service will be rewarded by the support and protection of the
state (per Lord Mance, §192). This position reflects fundamental
principles of jurisdiction in international law. Principled application of the
decision of the Grand Chamber of the European Court in Al-Skeini &
Others v United Kingdom (2011) 30 BHRC 561 (‘Al-Skeini (GC)’)
necessitates this conclusion. The Court of Appeal in the present case was
wrong to decide that Al-Skeini (GC) could be reconciled with the decision
of the majority of the Supreme Court in Catherine Smith.
4.
If troops undertaking security operations in Iraq were sufficiently under
the control of the UK to bring the Iraqi victims of their actions in Al-Skeini
within its jurisdiction, it ought logically to follow that the UK's individual
soldiers were also under its jurisdiction in relation to their actions as
such. To hold otherwise would be to provide that Iraqis enjoy the benefit
of European Convention rights in relation to complaints concerning the
control exercised over them by British forces undertaking military
operations in Iraq, but British troops also under the same control in the
same context do not.
2
At the material time, the relevant statutory provisions were contained in s2 and schedule 1 to the Army
Act 1955. As from 31 October 2009, they are contained in the Armed Forces (Enlistment) Regulations 2009
(SI 2009/2051) and the Defence Council attestation procedures made thereunder.
3
5.
In the Commission's respectful submission, the Court should strive to
avoid such an interpretation in the absence of compelling reasons to
support it. The distinction is intuitively unfair. There is no obvious
justification under Article 14 ECHR for such a difference in treatment or
protection between Iraqis and British troops. Moreover, such a
conclusion would leave an undesirable and unjustified gap in the
protection of international human rights law.
THE SIGNIFICANCE OF THIS ISSUE
6.
The jurisdictional scope of the ECHR is an issue of profound legal
significance, and has widespread practical importance for the conduct of
military operations overseas and the lives of military personnel serving
abroad. In 2011 - the most recent year for which figures are available 22,440 UK personnel were stationed overseas3. In that year, 132 British
service personnel died in Iraq. Of these, 47 were due to violence, 48 to
accidents, 31 to disease, and 5 were recorded as suicides or open
verdicts4. Soldiers in combat are, self-evidently, vulnerable to harm from
others or themselves. Male soldiers aged under 20 years experienced
proportionately 46% more suicides between 1984-2011 than their
counterparts in the UK general population.5
THE DEVELOPMENT OF THE ISSUE: RECENT DOMESTIC AND STRASBOURG
CASELAW ON ARTICLE 1 JURISDICTION IN THE CONTEXT OF BRITISH STATE
ACTIONS IN IRAQ
7.
Since jurisdiction is a question of authority and control it has, as a matter
of history and context, generally been regarded as primarily a territorial
3
UK Defence Statistics, Ministry of Defence, 1 December
http://www.dasa.mod.uk/modintranet/UKDS/UKDS2012/pdflist.php
4 Ibid., Table 3.2.
5 Ibid., Table 3.6.
4
2012
p.10.
Available
at:
concept, subject to extensions in exceptional contexts where states
extend their exercise of authority extra-territorially. It is in the context of
recent developments in extra-territorial interventions that the ambit of
the concept of jurisdiction has recently been explored. In Bankovic & Ors
v Belgium [2001] ECHR 890 (‘Bankovic’), the Grand Chamber of the
European Court held, in the context of determining the responsibility of
respondent states for NATO airstrikes by an international force in
territory under control of the Former Republic of Yugoslavia (FRY), that
the concept of 'jurisdiction' under Article 1 ECHR was primarily territorial,
and operated in the legal space (‘espace juridique’) of the Contracting
States. The court in Bankovic gave examples of circumstances in which,
exceptionally, a state could exercise jurisdiction extra-territorially. These
included the acts of diplomatic and consular agents abroad over
individuals, or of crafts registered in the contracting state or flying its flag.
A state may also exercise jurisdiction through the effective control of the
territory of another contracting state, and its inhabitants abroad, as a
consequence of military occupation or through the consent, invitation or
acquiescence of the government of that territory, or when it exercises all
or some of the public powers normally to be exercised by that
government.
8.
The ambit and consequence of the Bankovic decision are explored in a
series of cases concerning land operations by British military forces in
Iraq.
9.
Until the decisions in Al-Skeini (discussed below), the cases as to the
ambit of UK jurisdiction all involved the treatment of foreign nationals
where the impugned actions occurred inside UK-controlled bases or
detention facilities outside UK soil, and consequently focused mainly on
the degree of de jure or de facto control exercised over them (‘the
territorial control test’): R (Al Jedda) v SSD [2007] UKHL 58, [2008] 1 AC
332 (‘Al Jedda’). See too R (Al-Saadoon) v SSD [2009] EWCA Civ 7, [2009]
5
3 WLR, 957; Al-Saadoon, ECtHR: Appln no 61498/08, 30 June 2009 (‘AlSaadoon’).
10.
In R(Al-Skeini & Ors) v SSD [2007] UKHL 26, [2008] 1 AC 153, the House of
Lords considered claims by the relatives of six deceased Iraqi civilians.
Five had been shot by British troops in armed incidents during security
operations in southern Iraq, one had died the custody of the British
military. The House of Lords held (by a 4:1 majority) that only the case of
the claimant who died in custody fell within the Court's jurisdiction in
terms of article 1 of the Convention and consequently section 6 HRA.
Section 6 HRA provided a remedy in domestic law for rights guaranteed
by the Convention, including acts constituting an exercise of jurisdiction
outside the contracting state's territory.
11.
This conclusion was reached by applying a territorial concept of state
control, and finding that at the relevant time the United Kingdom did not
have effective control over the whole of southern Iraq. (The Grand
Chamber of the European Court later reached a different conclusion in
those cases: see §§24-26 below).
12.
In the meantime, the issue arose in the Catherine Smith case as to
whether the United Kingdom exercised 'jurisdiction' over its own troops
in Iraq qua victims; and if so, whether such jurisdiction only arose in areas
in which the UK had 'territorial control', or on some other basis. The issue
was essentially obiter/advisory in that case, since the government
accepted responsibility for Private Smith's death (in a British base) on the
basis of territorial control.
The question was whether the UK's
jurisdiction over the circumstances of his death arose on one of the
broader exceptional bases identified in by reason of the degree of control
exercised by UK public authorities over military personnel serving the UK
overseas.
6
13.
The Commission intervened in Catherine Smith. It took the view, and
remains of the view, that members of the armed forces, as persons acting
as state agents under the direction and control of the British state are
subject, wherever they are, to both the benefits and the burden of the
European Convention, on the basis that they fall within the personal
authority and control of the UK public authorities.
14.
The Secretary of State conceded that the tragic death of Private Smith fell
within the jurisdictional scope of Article 1, because (a) the relevant
circumstances leading to his death took place within a British army camp
and hospital in Iraq; (b) at all times Private Smith was acting within the
scope of his duties; and (c) no third party national was involved in his
death. (High Court Judgment, [2006] EWHC 694 (Admin); [2008] 3 WLR
1284, §7). This reflected the territorial control test which was later
explained in Al-Skeini (House of Lords).
15.
Collins J in the Administrative Court however identified a broader basis by
which Private Smith was within the scope of Article 1. He held that the
HRA applies to soldiers wherever they may be operating provided they
were not acting on a frolic of their own (§§10-20). This approach
reflected the personal control test identified as an alternative basis for
jurisdiction in Bankovic. The Court of Appeal in Catherine Smith endorsed
this approach (§§28 - 31). The Court of Appeal also concurred (§28) with
Collins J’s observation (§9, addendum ruling) on the Secretary of State’s
case,
‘… there is a degree of artificiality in saying that a soldier is
protected so long as he remains in the base or military hospital but
that he is not protected as soon as he steps outside.’
16.
The Supreme Court in Catherine Smith recognised that "in accordance
with international law", members of the armed forces remained under
the legislative, judicial and executive authority of the United Kingdom
(see per Lord Phillips at §53, with whom Lord Hope and Lord Brown
7
agreed).
Lord Hope, Lord Brown and Lord Collins all accepted that
members of the armed forces abroad were under the "authority and
control" of the United Kingdom §§91, 139, 239-240 and 307-308.
However by a 6:3 majority, the Supreme Court concluded that the
Convention did not protect members of the British armed forces when
operating outside their territories (albeit with considerable hesitation as
to the necessity or binding force of their observations in this regard: see
per Lord Walker at §129, Lady Hale at § 135, Lord Collins at §223, Lord
Phillips at §28). The majority erroneously reached its conclusion on the
basis that territoriality was the overarching consideration, and that the
UK lacked sufficient 'effective control of an area' to give it jurisdiction
over the relevant events and persons. That decision was reached at a
time when the decision of the Grand Chamber in Al-Skeini (GC) was
pending, and the Supreme Court acknowledged that the Grand Chamber
in Al-Skeini was the body best-placed to consider the ambit of Convention
jurisdiction (§§ 60, 93, 147).
17.
It was in the light of the Catherine Smith decision that Owen J in the
present case decided that these claims fell outside the UK's Convention
jurisdiction. After Owen J's first instance decision in this case (30 June
2011), but before it went to the Court of Appeal (19 October 2012), the
Grand Chamber handed down its decision in Al-Skeini (7 July 2011).
18.
As noted above, the House of Lords in Al-Skeini had regarded the primary
underpinning concept of jurisdiction as territoriality, and that 'special
circumstances' would be needed to bring the victims of actions by UK
troops within the effective jurisdictional control of the United Kingdom
for the purposes of Article 1 of the Convention. Unlike the House of
Lords, however, the Grand Chamber in Al-Skeini based its judgment on
circumstances in which jurisdiction might be extended extra-territorially
to an analysis of the particular circumstances in which underpinning
international law indices of effective jurisdictional 'authority and control'
8
were present. The Court reiterated its observations in Bankovic that the
primary concept of jurisdiction was territorial, but also repeated that
there were a number of recognised circumstances in which the concept
of jurisdiction was expanded (Ilascu & Ors v Moldova & Russia App 2004VII, 40 EHRR 46 at §333). The Grand Chamber held that one such case of
expanded jurisdiction was where a contracting state exercised some or all
of the public powers of government in another state, through consent,
acquiescence or invitation of the second state. In such circumstances, the
contracting state may be responsible for the breaches of the Convention
thereby incurred, so long as the acts complained of were attributable to it
rather than the State in whose territory it operated: Drozd & Janousek v
France & Spain 1992 series A no 240; Gentilhomme & Ors v France App
Nos 48205/99, 48207/99, 48209/99.
The Grand Chamber held that
whether there was sufficient effective authority or control to establish a
jurisdictional link fell to be determined by reference to the particular
facts in particular circumstances.
19.
Applying that concept of jurisdiction to the facts of the Al-Skeini cases, all
the complaints did fall within the UK's jurisdiction, because the UK
through its soldiers
‘exercised authority and control over individuals killed in the
course of security operations so as to establish a jurisdictional link
between the deceased and the UK for the purposes of Article 1 of
the Convention’ (§ 149).
20.
The Grand Chamber was also influenced by the relevant international
legislation in force at the relevant time (in addition to the extra-territorial
provisions of UK law outlined below at §55). In particular, the Coalition
Provisional Order Number 17 (Revised) provided at section 2(1):
‘Unless provided otherwise herein, the MNF [Multi-National
Force] ..., their Personnel, property, funds and assets, and all
International Consultants shall be immune from Iraqi legal
process.’
9
Section 2(3) provided:
‘All MNF ... shall be subject to the exclusive jurisdiction of their
Sending States. ...’
Section 2(4) provided:
‘The Sending States of MNF Personnel shall have the right to
exercise within Iraq any criminal and disciplinary jurisdiction
conferred on them by the law of that Sending State over all
persons subject to the military law of that Sending State.’
In other words, if the UK did not have effective authority and control over
the consequences of its service personnel's actions, no one did.
21.
When the present case reached the Court of Appeal, notwithstanding the
decision in Al-Skeini (GC), the Court of Appeal upheld the decision of
Owen J on the jurisdictional aspect of the decision (at § 32). Although the
Court of Appeal did not consider itself formally bound by the decision of
this Court in Catherine Smith, on Kay v London Borough of Lambeth
[2006] UKHL 10, [2006] 2 AC 465 principles, §16, it regarded it as
undesirable to 'enter the fray', in the light of the anticipated European
Court decision in Pritchard v UK; and in any event considered itself able to
reconcile the Catherine Smith decision with the Grand Chamber decision
in Al-Skeini (GC), because it (the Court of Appeal) did not extrapolate any
necessary link between the liabilities and obligations of British soldiers
acting as state agents and their own rights as against the British state in
respect of the actions of other state agents.
THE CORRECT APPROACH TO JURISDICTION: THE EHRC'S SUBMISSIONS
22.
The jurisdictional issue in the present appeal is whether the Supreme
Court in this case should revise the conclusions reached by the majority in
the Catherine Smith case, in the light of the Grand Chamber's decision in
Al-Skeini, having regard to the observations of principle in that case.
10
23.
The Commission submits that the touchstone is adequate authority and
control to create a jurisdictional link between the alleged victim and the
UK legal system. It invites the Supreme Court to prefer the reasoning
which attracted Collins J, the Court of Appeal and the minority of the
Supreme Court (Lady Hale, Lord Mance, Lord Kerr) in Catherine Smith to
the conclusions which, by a majority, this Court tentatively adopted in
that case.
24.
The Commission submits that the analysis of minority in Catherine Smith
is the correct one. First, it ensures effective protection of human rights,
and avoids circumstances in which service personnel are left without an
effective remedy in relation to breaches of fundamental rights, in
circumstances where they are liable if they themselves breach them.
Secondly, that analysis gives proper effect to our treaty obligations under
Article 1 ECHR, because is in step with the underpinning jurisdictional
principles of the Convention as interpreted by the European Court and
flows logically from the application of those principles by the Grand
Chamber in Al-Skeini. Thirdly, it provides a principled coherent basis for
understanding the concept of state jurisdiction over circumstances falling
within its territorial or other effective authority and control, and thereby
harmonises the UK's position with the correct approach in public
international law.
25.
Since the ECHR is the regional human rights instrument intended to give
effect to the overarching principles of public international law; and since
the HRA is the domestic law mechanism for giving effect to Convention
principles, it makes sense to analyse these three propositions in reverse
order.
(a) Jurisdiction in Public International Law: Principles and Comparisons
26.
In Bankovic, the Grand Chamber of the European Court said:
11
‘The Convention should be interpreted as far as possible in
harmony with other principles of international law of which it
forms part’ (§55).
The Convention must be read and given effect in the context of
international law as a whole (Bankovic (§§57 & 806). That interpretative
obligation is one which has more recently been described by the Grand
Chamber as mandatory, and which has been accepted and adopted by
the Court of Appeal (Burnip v Secretary of State for Work & Pensions
[2012] EWCA Civ 129 per Maurice Kay LJ at (§§21 & 22).
27.
The Commission is the UK's National Human Rights Institution with
international law obligations under UN Resolution 48/134 (cit sup at
(§1(ii)). It is therefore under a duty to advance an approach to jurisdiction
which harmonizes human rights protection, ensuring that UK law reflects
and gives effect to the principles of international law. Its function in
international law is to that the promote the protection of fundamental
human rights under UN and regional human rights instruments by
national bodies, and to advance an interpretation of national law which
forms a seamless net of protection for universal human rights, with no
legal 'black holes'. Adopting a purposive approach to the concept of
'universal' human rights standards, there should be no circumstances in
which there is no effective forum for seeking redress for alleged
violations of them.
28.
It is clear that as a matter of international law, jurisdiction is a word
associated with exercise of authority, and its reach is not merely
territorial. Indeed, there are examples of human rights treaties which use
the concept of jurisdiction and territoriality disjunctively, eg Article 2(1)
6
This proposition was indeed expressly relied upon by the Secretary of State for Defence in Al-Jedda v SSD
[2008] 1 AC 332 at 336 D-E. The general rules of interpretation under the Vienna Convention on the Law of
Treaties 1969 require treaties to be interpreted according to ‘any relevant rules of international law’ (Article
31(3)(c)).
12
of the International Covenant on Civil and Political Rights (‘ICCPR’); the
Second Optional Protocol to the ICCPR abolishing the death penalty, and
Article 7 of the International Convention on the Protection of the Human
Rights of All Migrant Workers and Members of their Families 1990.
29.
International law recognises the state’s right to exercise jurisdiction over
its nationals travelling or residing abroad, since they remain under its
personal authority: Oppenheim's International Law (9th edition (2008),
vol 1, para 138, cited by Lord Rodger in Al-Skeini at §46).
30.
Personal jurisdiction was embraced by the UN Human Rights Committee
(‘the Committee’) in López v Uruguay (1981) 68 ILR 29 at §12.2, a case
concerning the abduction of a Uruguayan citizen in Argentina by
Uruguayan security forces. The Committee found at §12.2 that
‘jurisdiction’ in art 2(1) of the ICCPR was a reference:
‘… not to the place where the violation occurred, but rather to the
relationship between the individual and the state in relation to a
violation of any of the rights set forth in the Covenant, wherever
they occurred.’ (emphasis added).
31.
In United Nations General Comment No. 31 [80]7 at §10 the Committee
stated:
‘States Parties are required by article 2, paragraph 1, to respect
and to ensure the Covenant rights to all persons who may be
within their territory and to all persons subject to their jurisdiction.
This means that a State party must respect and ensure the rights
laid down in the Covenant to anyone within the power or effective
control of that State Party, even if not situated within the territory
of the State Party.’ (emphasis added).
7
‘The Nature of the General Legal Obligation Imposed on States Parties to the Covenant’ CCPR/C/21/Rev
1/Add.13 (Adopted on 29 March 2004).
13
32.
A number of municipal human rights instruments, in reflection of those
international law principles, reach beyond territorial boundaries. For
example, in certain prescribed circumstances, the Canadian Charter of
Fundamental Rights and Freedoms guarantees Charter rights extraterritorially. In R v Cook (1998) 2 SCR 597, the Supreme Court grounded
jurisdiction in the nationality link between Canadian law enforcement
officials acting abroad and their state of nationality:
‘While territoriality is the most common basis of jurisdiction,
international law also permits states to evoke the nationality of
the person subject to the domestic law as a valid basis of
jurisdictional authority. … on the jurisdictional basis of nationality,
the Charter applies to the actions of Canadian law enforcement
authorities on foreign territory … provided that the application of
Charter standards would not interfere with the sovereign authority
of the foreign state.’8 (emphasis added)
33.
Similarly, the US Supreme Court has held that habeas corpus rights
extend extra-territorially. In Boumediene v Bush 553 US (2008) the Court
considered that the Suspension Clause guaranteed rights to detainees in
Guantanamo Bay despite the absence of de jure sovereign control over
the military base there situated:
‘… questions of extraterritoriality turn on objective factors and
practical concerns, not formalism.’9
34.
In the present context, relevant legislation applicable in Iraq at material
times (cit. sup. at §20) provided for British soldiers in Iraq to be (a)
immune from Iraqi legal process and (b) exclusively subject to UK law. In
objective and practical terms, they were under the sole control of the UK.
8§§28-46.
R v Cook has subsequently been distinguished in different factual scenarios, see R v Hape 2007
SCC 26; [2007] 2 SCR 292. However, nationality remains a recognised ground for the extra-territorial
application of the Charter: Canada (Justice) v Khadr 2008 SCC 28; [2008] 2 SCR 125.
9
Per Justice Kennedy, p.34.
14
35.
The provisions of international law outlined in the CPA orders cited above
are definitive for the purposes of public international law. They vest in
the UK exclusive jurisdiction over the members of the UK’s armed forces
in Iraq (and not simply with regard to matters of internal discipline): see
Oppenheim, op cit., at §558; cf. Holland v Lampen-Wolfe [2000] 1 WLR
1573 at 1577C-D (Lord Hope); 1586 (Lord Millett).
36.
There is no issue here of conflicting jurisdiction. The concerns expressed
by the European Court in Bankovic that an exorbitant extension of a
State’s extra-territorial
human
rights jurisdiction
might
involve
infringement of another State’s authority without consent or
acquiescence (§58) are not engaged by treating UK service personnel
acting abroad as falling within the UK's jurisdiction. No other State
contends for jurisdiction over the serving United Kingdom soldiers in Iraq.
The contrary case leads to a jurisdictional lacuna. If those service
personnel do not fall within the UK's jurisdiction, they are without any
effective protection at all for their fundamental human rights.
(b) Consistency with treaty obligations: giving proper effect to Article 1 as
interpreted by the ECtHR
37.
Article 1 of the European Convention provides that ‘the High Contracting
Parties shall secure to everyone within their jurisdiction the rights and
freedoms defined in Section 1 of the Convention’.
38.
The Supreme Court has correctly recognised the superior institutional
competence of the European Court as the proper forum for determining
issues of jurisdiction: see per Lord Phillips in Catherine Smith at §2 (see
also §§ 60, 93,147)10 and per Lord Brown in Rabone v Pennine Care Trust
10
Indeed, the Secretary of State positively asserted as much in submissions to the Supreme Court in
Catherine Smith: 65B ‘The Convention is an international instrument and it is for the European Court of
Human Rights to lay down its proper interpretation so as to ensure a common meaning among contracting
states ... ‘
15
[2012] 2 WLR 381 at §11411. Jurisdiction is not a concept which varies
with the social and cultural traditions of the member states (in contrast
to decisions on application of qualified rights, in which the domestic
courts may have relative institutional competence as recognised by the
Court of Appeal in the present case at §15, and in which it may be
appropriate in some circumstances for the supra-national Court to defer
to the national court).
39.
The Al-Skeini (GC) decision as to jurisdiction was not about complete
effective control of a territory. Rather, it turned on recognising UK state
authority and control over the impugned actions of its state agents in
Iraq. Authority and control over British troops was the underpinning
principle: authority and control which the Supreme Court in Smith
recognised was inherently conferred on the United Kingdom in
accordance with international law (§15 above).
40.
The logical consequence for this court of accepting the principles
underpinning the Grand Chamber's decision is to find that there was a
necessary jurisdictional link under Article 1 ECHR between any persons
killed in Iraqi territory as a result of the actions of British soldiers
exercising authority and control over them in the course of security
operations at the relevant time.
41.
The link identified in Al-Skeini (GC) between the human rights of an Iraqi
civilian victim and the UK rested exclusively on the UK's authority and
control over the actions of the state agents which are under challenge.
The jurisdictional link between the human rights of a UK military victim
challenging actions which are materially identical in nature cannot be any
weaker. Nothing in the Al-Skeini reasoning offers any logical basis for
11
"... it is for Strasbourg alone definitely to interpret the Convention and determine what rights
are guaranteed by it ..."
16
making that jurisdictional link in cases where the alleged victim is an Iraqi
national, but breaking it if the alleged victim is a British national. If the
British state had sufficient authority and control over Iraqi civilians
affected by its security operations, a fortiori it had such control over its
own military personnel in the course of conducting them.
42.
There is no basis in Strasbourg jurisprudence for discriminating against a
British national in these circumstances. Indeed there is some basis in
international law (supra, §§28-32) and in Bankovic (§59) for suggesting
that a national link between the alleged victims and the UK would, if
anything, strengthen the jurisdictional nexus between the actions of state
agents and those whose rights were affected by actions under their
control.
43.
Bankovic does not support a finding that jurisdiction is inherently a
territorial concept. In Bankovic the European Court of Human Rights
considered the drafting history of the Convention (§§17-19), and noted
from the travaux préparatoires the proposed extension from ‘persons
residing in the territory of member states’ to ‘persons in the territory of
Member States’. The final test adopted in the text, however, deployed an
enlarged concept of ‘jurisdiction’ on the genesis of which the travaux
préparatoires were silent (§19).
44.
Bankovic was decided in a particular context in which territorial concepts
of jurisdiction were obviously to the fore (a challenge to the extraterritorial acts of a multi-national force in a territory with its own
operating sovereign authority). Given the circumstances in which that
case arose, it is unsurprising that the analysis and argument in it focused
on whether the territorial control test was satisfied, see eg §68 and §69.
The Court was
‘not persuaded that there was any jurisdictional link between the
persons who were victims of the act complained of [by NATO
17
forces] and the respondent states. Accordingly it is not satisfied
that the applicants and their deceased relatives were capable of
coming within the jurisdiction of the respondent states on account
of the extra-territorial acts in question’ (§80).
45.
However, even the successful respondent governments in that case did
not suggest that the territorial control test was the complete answer to
determining the ambit of the state's jurisdictional responsibilities. They
submitted that:
‘the exercise of jurisdiction involves the assertion of exercise of
legal authority, actual or purported, over persons owing some
form of allegiance to that state or who have been brought within
the state’s control.’ (§36)
The respondent states argued for both a personal control test (which was
manifestly not satisfied in Bankovic) and a territorial control test (which
the Court held was not satisfied).
46.
The Court in Bankovic certainly did not reject the personal control test.
Indeed so far as there is an underlying theme in its judgment, it lies in the
concept of effective control, over territory or persons. The Court
expressly recognised that jurisdiction could not be limited by the
Respondent state’s geographical boundaries, but could arise on other
bases depending on 'the circumstances of each case’ (§59). Furthermore
the Court held that:
‘The Convention should be interpreted as far as possible in
harmony with other principles of international law of which it
forms part’ (§55)
and specifically mentioned ‘nationality’ as a basis for a State’s jurisdiction
distinct from the purely territorial (§57).
47.
Personal jurisdiction does not depend on a person’s location. It is
founded on the reciprocal rights and obligations of nationals and their
state wherever they may be. In the present case, this provides the
18
requisite jurisdictional ‘link’ referred to in Lord Roger’s speech in Al-Skeini
(House of Lords) (§64). The soldiers in this case were those who - in the
test suggested by the respondent states in Bankovic - owed not only
some, but a very direct and particular ‘form of allegiance to that state’.
Indeed, they were required by English law to swear an oath of allegiance
to the Crown or to make an equivalent affirmation12.
48.
It is true that the precise question at issue in the present case has not yet
been determined by the European Court (though it will fall to be decided
in Pritchard v UK). The question hitherto has been whether the subjection
of a national of one state to the authority and control of another State’s
agent acting abroad suffices to bring the national of the former state
under the latter State’s jurisdiction13.
49.
However, it is perhaps significant that the logically anterior issue –
whether the State’s agent is himself within his State’s Article 1
jurisdiction – has never been questioned by the European Court: indeed,
it has been the premise from which explorations of wider jurisdiction
have been developed. The European Commission of Human Rights
consistently observed that:
‘authorised agents of a State (including diplomatic or consular
agents and armed forces) not only remain under its jurisdiction
when abroad but bring other persons or properly ‘within the
jurisdiction’ of that State, to the extent that they exercise
authority over such persons or property.’
12
At the relevant time, the oath of allegiance was required by section 2 and schedule 1 Army Act 1955. It is
now required by the Armed Forces (Enlistment) Regulations 2009 and the Defence Council instructions as to
the form of attestation made thereunder.
13
See R Lawson, ‘Life after Bankovic: on the Extraterritorial Application of the European Convention on
Human Rights’, O’Boyle, ‘The ECHR and Extraterritorial Jurisdiction: A Comment on ‘Life after Bankovic’’125,
137-138 in F Coomans and M Kamminga (eds) Extraterritorial Application of Human Rights Treaties
(Antwerp 2004).
19
(Cyprus v Turkey (App No 6780/74; 6950/75) (1975) 2 DR 125, 136; W v
Ireland (App No 9360/81) (1983) DR 211, 215; Vearncombe and Ors v UK
and FRG (App No. 12816/87) (1989) 59 DR 186, 194.)
50.
In Martin v UK (2007) 44 EHRR 31, the applicant was the civilian juvenile
son of a soldier serving in Germany who had been tried by court martial
in Germany for murder. He was subject to military law by s 70(1) and
schedule 5(5) to the Army Act 1955. There was no question before the
European Court that he was not within the jurisdiction of the UK.
51.
The UK's duty under the Vienna Convention is to give effect to the
principles in these cases which reflect the underlying purpose of article 1,
which is to give regional effect to the international law principles of
jurisdiction.
(c) The Effective Protection of Human Rights under the HRA
52.
The Commission submits that British troops who are subject to the
obligation of complying with the European Convention when posted
outside UK territory as state agents (itself a matter of UK state command)
should, when so posted, continue to enjoy the Convention's benefits too.
This intuitively 'feels fair':
‘where prescriptive rules are applied, so should be protective
norms’14.
It does not 'feel fair' that violations of the rights of members of our
armed forces which would attract a remedy if they occurred on UK
territory attract no such remedy if they are posted overseas in service of
14
Paul Arnell ‘The long arm of United Kingdom law’: Scots Law Times 2008 p3.
20
the state. Nonetheless, a solid legal foundation is obviously required to
support this intuitive conclusion.
53.
That foundation is secured in the statutory structure of domestic law. The
HRA protects only rights defined by s.1 as ‘Convention rights’ and
contained in Schedule 1. Although Article 1 is not a ‘Convention right’
scheduled to the HRA, it defines the ambit of the other rights protected
by the scheduled Convention rights.
54.
The statutory structure was explained by the House of Lords in Al-Skeini.
The House held, by a 4:1 majority, that the duties of public authorities
(such as members of the military) under s6 HRA did indeed in appropriate
circumstances extend to such acts where they occurred abroad, as well as
in the UK. However, a complainant could only establish victim status
under section 7(7) HRA where the individual and the complaint fell within
the jurisdiction of the European Convention for the purposes of Article 1
(see Lord Roger at [55], with whom Baroness Hale and Lord Carswell
agreed at [86] and [96] respectively).
55.
UK public authorities are within the ‘legislative grasp or intendment’ of
the HRA, and section 6 applies to their acts: Lord Rodger in Al-Skeini at
§45. There is a sufficient link between the officer serving abroad and the
UK qua state or public authority: Lord Roger in Al-Skeini at §§45, 64;
Court of Appeal at §§25, 28, 32.
56.
It would be contrary to logic and principle if the alleged breaches of
human rights arising from the extra-territorial activities of British soldiers
were considered capable of conferring jurisdiction on non-nationals by
virtue of the soldiers’ link with the United Kingdom but the forces were
not themselves considered within the jurisdiction of the Convention for
breaches of rights arising from the same operations at the same time, for
the purposes of s7 of the Human Rights Act.
21
57.
In some circumstances, there may be reasons for perceiving closer links
between a state and its nationals than the state and non-nationals; but it
is difficult to conceive of circumstances in which the reverse is justified.
This submission is fortified by Lord Rodger’s observation in Al-Skeini at
§46, that
‘Parliament may legislate for British citizens outside the United
Kingdom, provided that the particular legislation does not offend
against the sovereignty of other states.’
He cited the classic authority of Ex p Blain (1879) 12 Ch D 522, 531-532,
Cotton LJ:
‘... all laws of the English Parliament must be territorial - territorial
in this sense, that they apply to and bind all subjects of the Crown
who come within the fair interpretation of them, and also all
aliens who come to this country, and who, during the time they
are here, do any act which, on a fair interpretation of the statute
as regards them, comes within its provision.... As regards an
Englishman, a subject of the British Crown, it is not necessary that
he should be here, if he has done that which the Act of Parliament
says shall give jurisdiction, because he is bound by the Act by
reason of his being a British subject, though, of course, in the case
of a British subject not resident here, it may be a question on the
construction of the Act of Parliament whether that which, if he
had been resident here, would have brought him within the Act,
has that effect when he is not resident here.’ (Counsel’s emphasis)
Here, there was
‘no doubt that section 6 applies to public authorities such as the
armed forces within the United Kingdom: the only question is
whether, on a fair interpretation, it is confined to the United
Kingdom.’ (§47)
58.
It is relevant that, for all other domestic legal purposes, members of the
British armed forces are within the jurisdiction of the UK's courts,
wherever they are in physical terms. Members of the armed forces have
relinquished near-total control over their lives to the State. They remain
subject to UK military law without territorial limit (Armed Forces Act
22
2006, s.367(1))15; to general criminal law (Army Act 1955, section 70(1);
Armed Forces Act 2006, section 42); to the law of tort (Bici v Ministry of
Defence [2004] EWHC 786 (QB) §§84-102; Lord Bingham in Al-Skeini at
§26; Crown Proceedings (Armed Forces) Act 1987, section 1) to internal
disciplinary law, to employment law (Lawson v Serco Ltd. [2006] 1 CR 250;
Race Relations Act 1976, section 75(2)(c)); and to various aspects of
administrative law (Registration of Births, Deaths and Marriages (Special
Provisions) Act 1957, section 1). Moreover, members of the armed forces
retain all the rights and are subject to all the duties of ordinary citizens:
Burdett v Abbot (1812) 4 Taunt 401 per Mansfield CJ at §449. Halsbury’s
Laws 5th ed: Vol 3(1) para 303.
59.
Lord Brown in Al-Skeini (House of Lords) properly assumed that a British
soldier in Iraq was within the UK’s Article 1 jurisdiction, in observing that
if such a soldier had been court-martialled in Iraq, there would have been
no good reason for requiring any Article 6 complaint to be taken to
Strasbourg rather than to the UK’s courts (§140).
60.
The only case at present in which the English courts have had to consider
whether a United Kingdom public authority – in that instance the Prime
Minister – owed a duty to the relatives of an English solider in respect of
a fatality which occurred abroad was R (Gentle) v Prime Minister [2008]
UKHL 20; [2008] 1 AC 1356. The factual context was wholly distinct. The
challenge arising out of the deaths of two servicemen killed in Iraq was to
the Respondent’s refusal to hold an inquiry into the legality of the war in
Iraq. The claim was dismissed on a number of grounds.
15
Members of the Armed Forces may be tried by courts martial under military law whether the offence was
committed in the United Kingdom or elsewhere: Halsbury’s Laws 5th ed: Vol 3(1) para 303.
23
61.
Lord Bingham alone expressly adverted to extra-territoriality as providing
an objection to the claim, observing that soldiers serving in Iraq were
outside the jurisdiction of the State (§8(3)).
62.
The Commission respectfully submits that the Court of Appeal in
Catherine Smith was correct in holding that Lord Bingham’s comment on
this issue was an obiter dictum (§60). In particular:
(i)
It was made in the context of a series of several propositions as to
why Article 2 did not apply to the process of deciding the
lawfulness of resort to arms;
(ii)
Even in that context it was subsidiary to what Lord Bingham
described as ‘a more fundamental objection to the claimant’s
argument’ ie the remoteness of the complaints from the true
purview of Article 2;
(iii)
The passages from Al-Skeini (House of Lords) relied on by Lord
Bingham (§§79 and 179) did not support the conclusions he
derived from them since they were concerned with the territorial
control test, not a personal control test;
(iv)
Significantly, Lord Bingham was himself in a minority of one in
Al-Skeini (House of Lords) in denying any extra-territorial effect to
the HRA;
(v)
The same point was not determined by a majority of their
Lordships in Gentle16. Their variously phrased assent to the
conclusions and reasoning of Lord Bingham (Lord Hoffman at §16,
Lord Hope at §28; Lord Scott at §29; Lord Rodger at §45; Lord
Mance at §74); cannot be read as endorsing that particular
16
See the discussion by the Court of Appeal at §§54–60.
24
dictum17. Baroness Hale who spoke of her ‘substantial agreement’
(§61) clearly disagreed on that point (§60).
63.
Baroness Hale in Gentle at §60 was correct to say that a soldier serving
under the command and control of his superiors must be within the
jurisdiction of the State for the purposes of Article 1 of the Convention
and, therefore, within the ambit of s6 of the HRA, notwithstanding that
the nature of an act or omission constituting a violation of a Convention
right may be modified by the exigencies of military service. As she put it
‘If Mr Baha Mousa, detained in a military detention facility in
Basra, was within the jurisdiction, then a soldier serving under the
command and control of his superiors must also lie within the
‘jurisdiction’ ...’.
64.
The Commission submits, by parity of reasoning, that if the victims in AlSkeini who did not die in British detention facilities, were within the
jurisdiction, then a soldier serving under the control of his superiors must
also be so.
CONCLUSIONS
65.
The Commission's proposed answer to the jurisdiction question in this
case offers a logically coherent and seamless interpretation of the
interlinked international, Council of Europe, and national principles.
66.
There need be no fear that this approach is in some way is to ‘divide and
tailor’ the jurisdiction question according to the particular circumstances
of the case (Al-Skeini per Lord Roger at §79)18. As the Grand Chamber
explained in Al-Skeini at §137,19 the positive obligation to 'secure' rights
17
See as to the difficulties of ascertaining the precise degree of concurrence Cross and Harris ‘Precedent in
English Law’ (OUP, 1991) 4th ed. p.85.
18
See King at pp.542-551.
19
Jamaa v Italy (2012) 55 EHRR 21, §74.
25
gains its scope from its context. While a state must do all that can
reasonably be expected of it to ensure that Convention rights are
respected within its jurisdiction, limitations on its control over a territory
may reduce the extent of a state’s obligations: Ilascu v Moldova and
Russia 2004-VII, 40 EHRR 46 at §333. It is for this reason that consular
officials, who are within the state’s jurisdiction for the purposes of Article
1, are not expected to guarantee Article 8 rights to the same extent as
state officials in the United Kingdom: X v United Kingdom (1977) 12 DR
73. They can only act within their lawful authority in the host state which
imposes practical and legal constraints on the scope of their power to
guarantee human rights. This does not do any damage to the notion of
jurisdiction or the indivisibility of the Convention. The United Kingdom
government can extend all Convention rights to its servicemen in Iraq (or
otherwise abroad) suitably adjusted to reflect the context in which they
operate.
67.
The wider rationale for recognising Article 1 jurisdiction adopted by the
minority of the Supreme Court, the Court of Appeal, and Collins J in
Catherine Smith accords more closely with the underpinning principles of
jurisdiction in international law, and the overwhelming majority of
national and Strasbourg caselaw, than the narrower reasoning, and
tentative conclusions of the majority of the Supreme Court in that case,
themselves expressed before the Grand Chamber in Al-Skeini had
delivered judgment.
68.
In the Commission’s respectful submission, there would have to be
compelling reasons of principle to accept the proposition contended for
by the Secretary of State: that Art 1 jurisdiction only arises in respect of a
British soldier abroad whilst he remains on a UK base, but dissipates the
moment he steps outside it. Moreover, there would have to be
compelling reasons of principle to hold that there was a jurisdictional link
between the United Kingdom and relatives of the Iraqis in the Al-Skeini
26
case, killed during United Kingdom controlled security operations in Iraq,
but no such jurisdictional link between the United Kingdom and relatives
of United Kingdom personnel killed in United Kingdom controlled security
operations occurring in the same place at the same time.
69.
There are no such compelling reasons, and indeed, compelling reasons of
public policy and harmonised international human rights protection to
the contrary.
HELEN MOUNTFIELD QC
ELIZABETH PROCHASKA
Matrix Chambers,
30 January 2013
27