| Human rights — Jurisdiction — Actions of state agents abroad — Five Iraqi civilians killed by British troops during military operations in the field — Sixth dying in British military detention base allegedly after torture — Whether actions of soldiers within scope of Human Rights Convention — Whether actions of soldiers within scope of Human Rights Act 1998 — Whether breach of United Kingdom’s procedural duty to investigate deaths and torture — Human Rights Act 1998, ss 6(1), 7(1), Sch 1, Pt I, arts 2, 3 — Convention for the Protection of Human Rights and Fundamental Freedoms (1953) (Cmd 8969), art 1
R (Al-Skeini and others) v Secretary of State for Defence (Aire Centre and 10 others intervening)
HL: Lord Bingham of Cornhill, Lord Rodger of Earlsferry; Baroness Hale of Richmond, Lord Carswell and Lord Brown of Eaton-under-Heywood: 13 June 2007
S 6(1) of the Human Rights Act 1998 was capable of applying to acts committed by a UK public authority outside its territory where in exceptional circumstances the victim was “within the jurisdiction of the United Kingdom” for purposes of art1 of the European Convention on Human Rights.
The House of Lords so held, Lord Bingham of Cornhill dissenting, when dismissing (1) appeals by five claimants, Mazin Jum’aa-Gatteh Al-Skeini, Fattema Zabun Dahesh, Hameed Abdul Rida Awaid Kareem, Fadil Fayay Muzban, Nuzha Habib Yaaqub Ubaid Al Rayahi whose relatives were killed in incidents involving British troops patrolling in Iraq, and (2) the Defence Secretary’s cross-appeal in respect of the sixth claim, by Daoud Mousa, whose son died at a British military detention base from injuries allegedly caused by British soldiers, from the Court of Appeal [2007] QB 140 which affirmed the decision of the Divisional Court [2007] QB 140 that the 1998 Act and Convention only applied in the sixth case; and set aside its declaration in the sixth case that the procedural duties under arts 2 and 3 of the Convention, as scheduled to the Act, had been violated. The House remitted that case to the Divisional Court. 11 national and international organisations, concerned with states’ accountability for human rights violations, intervened in the appeals.
LORD RODGER OF EARLSFERRY said that there was no objection in principle to Parliament legislating for British subjects outside UK territory if the particular legislation did not offend against the other states’ sovereignty. S 6(1) applied only to UK public authorities; whether it also applied beyond that territorial limit depended on the nature of the 1998 Act. Its central purpose was to provide a remedial structure in domestic law for the rights guaranteed by the Convention; making such remedies available for acts of a UK public authority on the territory of another state would not be offensive to its sovereignty. Since, in exceptional circumstances acts of the contracting states performed outside their territory could constitute an exercise of their jurisdiction under art 1 of the Convention, the rights scheduled to the Act, including art 2, were to be read as applying wherever the UK had jurisdiction in terms of art 1. Accordingly, s 6 was to be interpreted as applying to a public authority acting not only in the UK but also within its art 1 jurisdiction outside its territory.
LORD BROWN OF EATON-UNDER-HEYWOOD said that the ultimate question on the reach of the Convention was for the Strasbourg court: the House should not construe art 1 as having any wider reach than that clearly shown by the existing Strasbourg jurisprudence. Bankovic v Belgium (2001) 11 BHRC 435 was authority for the propositions that the Convention operated in a regional context within the legal space of the Council of Europe; art 1 reflected a territorial notion of jurisdiction and other bases of jurisdiction were exceptional, requiring special
justification in the particular circumstances of each case. None of the first five claimants came within any such exception and therefore fell outside the UK’s art 1 jurisdiction; in the sixth case, jurisdiction was only recognised on a narrow basis, by analogy, with the exception made for embassies.
BARONESS HALE OF RICHMOND and LORD CARSWELL delivered concurring opinions and LORD BINGHAM dissenting, concluded that the 1998 Act conferred no right based on acts committed outside the UK and expressed no opinion whether claims might lie under the Convention.
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Appearances: Rabinder Singh QC, Michael Fordham QC, Shaheed Fatima and Christine Chinkin (Public Interest Lawyers, Birmingham) for the claimants; Keir Starmer QC, Richard Hermer and Charles Banner (Bhatt Murphy) for the interveners; Christopher Greenwood QC, Philip Sales QC and Cecilia Ivimy (Treasury Solicitor) for the Secretary of State.
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