Mr Justice Collins has drawn gasps of disbelief in some quarters by ruling that human rights law might apply to soldiers on active service. In particular, he said, soldiers might enjoy the protection of law on the right to life.

The gist of some people’s incredulity is that as soldiers are volunteers to mortal danger, they cannot have the right to life. In fact, the scope of who enjoys human rights is determined in the phrase itself – the eligibility test is simply that you are a human being. No job, race, creed, colour, class or age puts a person outside the ambit of human rights.

So, people suspected of crime, or charged, or convicted, prisoners, young children, people in the UK who are not British, and soldiers on active serve all enjoy human rights. It is the mark of a civilised society. It does not mean we don’t convict criminals (we have a record number of people in jail), it just means we don’t use state-rigged trials. It doesn’t mean we don’t punish criminals – just that the punishment we inflict isn’t inhuman. And it doesn’t mean soldiers can’t be sent into potentially lethal danger zones and asked to put their lives at risk. They can be asked to do that, it’s what soldiers are trained to do. Saying they have "the right to life" just means that they can’t be treated like lambs sent into certain and avoidable slaughter.

In his ruling Mr Justice Collins said: "The soldier does not lose all protection simply because he is in hostile territory carrying out dangerous operations.” The judge noted that to send a soldier out on patrol or into battle with defective equipment could constitute a breach of Article 2 (right to life) of the European Convention on Human Rights.

The landmark judgment came in a test case relating to the death of the soldier Pte Jason Smith in Iraq. Lawyers for the Ministry of Defence (MoD) had argued that it was impossible to give soldiers in combat situations the benefits of the Human Rights Act.

Article 1 of the European Convention on Human Rights requires that governments “secure to everyone within their jurisdictions” certain rights and freedoms. Governments do not have to spend extravagantly on protecting the rights but they must provide sufficient resources or at least not plead poverty as a reason for doing things such as exposing troops to unnecessary danger. By comparison, the Government would be in breach of its obligation to provide people with the right to a fair trial (Article 6) if someone who could not afford a lawyer was convicted without having legal representation.

Article 2 of the convention says that everyone’s right to life shall be protected by law. One obvious thing that obligation means is that you have laws against murder and manslaughter. But another consequence is that there is an obligation on those who run care homes or hospitals or prisons to take appropriate measures to safeguard the lives in their care. That does not mean that a care home is obliged to provide 24/7, unremitting, individual care to every resident, or that prisons must become crosses between five-star hotels and private hospitals. But it does mean that if you fail to provide any system to stop an infirm person in a care home dying from infected bed sores, or you put a vulnerable prisoner in a prison cell with a violent, deranged, homicidal maniac who kills him, you might well have violated the victim’s right to life.

In 1994 Christopher Edwards, a prisoner at Chelmsford Prison, was kicked and stamped to death in his cell by Richard Linford, his cell mate. The police and medical authorities had failed to pass on information of Linford’s history of savage violence and mental illness. In 2002 it was held by the European Court of Human Rights that this failure to communicate contravened Mr Edward’s right to life. The court recognised that a state under a positive obligation to protect life should not have to bear “an impossible or disproportionate burden” but avoiding horrific danger, such as the sort created at Chelmsford Prison, was not too much to ask.

In Afghanistan and Iraq there is evidence that some soldiers have died in ways that were avoidable - even in the brutal and unpredictable realities of a war. There is a legitimate public expectation to know why, with an annual budget of £32.6 billion, the Ministry of Defence was until a while ago asking soldiers to share protective kit and go into danger inadequately equipped.

Earlier this year, the coroner Andrew Walker, completed the inquest on Captain James Philippson. Mr Walker stated that the MoD had let down soldiers by sending them to Afghanistan without appropriate apparatus. He said they were “defeated not by terrorists but the lack of basic equipment”. He ruled that to send soldiers into a combat zone without basic equipment is “unforgivable, inexcusable and a breach of trust between the soldiers and those who govern them".

The Government is now appealing against Mr Justice Collins’ ruling that soldiers have human rights. If the Government won, would it be proud to include on its television recruitment adverts the voiceover: you are welcome to join the Armed Services but please leave your human rights at the door?

Professor Gary Slapper is Director of the Centre for Law at The Open University

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