House of Lords
Published April 10, 2008
Regina (Gentle and Another) v Prime Minister and Others
Before Lord Bingham of Cornhill, Lord Hoffmann, Lord Hope of Craighead, Lord
Scott of Foscote, Lord Rodger of Earlsferry, Baroness Hale of Richmond, Lord
Carswell, Lord Brown of Eaton-under-Heywood and Lord Mance
Speeches April 9, 2008
The British Government did not owe a duty to British troops and their
families, under article 2 of the European Convention on Human Rights, to
hold a public inquiry into whether it had obtained adequate legal advice on
the legality in international law of the invasion of Iraq before the
invasion.
The House of Lords so held in dismissing an appeal by the claimants, Mrs Rose
Gentle and Mrs Beverley Clarke, mothers of men who had been killed while
members of the Armed Forces on service in Iraq, against the dismissal by the
Court of Appeal (Sir Anthony Clarke, Master of the Rolls, Sir Igor Judge,
President, and Lord Justice Dyson) (The TimesJanuary 1, 2007; [2007]
QB 689) of their claim for judicial review of the Government’s refusal to
hold an independent inquiry into the circumstances which led to the invasion
of Iraq.
The Court of Appeal had granted the claimants permission to proceed with their
claim after a refusal of leave by Mr Justice Collins ([2005] EWHC 3119). The
defendants were the Prime Minister, the Secretary of State for Defence and
the Attorney-General.
Mr Rabinder Singh, QC, Mr Michael Fordham, QC and Mr Alex Bailin
for the claimants; Mr Jonathan Sumption, QC, Mr Philip Sales, QC and Ms
Jemima Stratford for the defendants.
LORD BINGHAM said that the claimants contended that by virtue of sections 1
and 2 of the Human Rights Act 1998 and article 2 of the Convention,
protecting the right to life, they had an enforceable legal right sounding
in domestic law to require the Government to establish an independent public
inquiry into all the circumstances surrounding the invasion of Iraq by
British forces in 2003, including, in particular, the steps taken by the
Government to obtain timely legal advice on the legality of the invasion.
The corollary of that right was a duty binding on the Government to establish
such an inquiry. It was a duty owed, the complainants said, to all members
of the Armed Forces deployed to Iraq and their families.
They did not say the inquiry should consider whether the use of armed force by
the United Kingdom in Iraq in 2003 was lawful or unlawful in international
law. The inquiry would be directed to the process by which the Government
obtained advice and not to the correctness of the advice it received or
should have received.
The thrust of the complainants’ case was: Article 2 imposed a duty on member
states to protect life. That duty extended to the lives of soldiers. Armed
conflict exposed soldiers to the risk of death. Therefore, a state should
take timely steps to obtain reliable legal advice before committing its
troops to armed conflict. Had the UK done that before invading Iraq in March
2003, it would arguably not have invaded. Had it not invaded, the claimants’
sons would not have been killed.
It was the procedural obligation under article 2 to initiate an effective
public investigation by an independent official body into any death
occurring in circumstances in which it appeared that one of the substantive
obligations under article 2 had been, or might have been, violated and it
appeared that agents of the state were, or might have been, in some way
implicated, that the complainants sought to invoke.
But, his Lordship said, it was clear that the procedural obligation under
article 2 was parasitic upon the existence of the substantive right, and
could not exist independently.
Thus to make good their procedural right to the inquiry they sought the
complainants had to show, as they accepted, at least an arguable case that
the substantive right arose on the facts of the cases. Unless they could do
that, their claim had to fail.
Despite their careful and detailed submissions, his Lordship was driven to
conclude that they could not establish such a right. There was no warrant
for reading article 2 as a generalised provision protective of life,
irrespective of any specific death or threat.
It might be significant that article 2 had never been held to apply to the
process of deciding on the lawfulness of a resort to arms, despite the
number of occasions on which member states had made that decision over the
past half century and despite the fact that such a decision almost
inevitably exposed military personnel to the risk of fatalities.
There were three main reasons for that:
1 The lawfulness of military action had no immediate bearing on the
risk of fatalities. Indeed, a flagrantly unlawful surprise attack such, for
instance, as that which the Japanese made on the US fleet at Pearl Harbor,
was likely to minimise the risk to the aggressor.
2 The draftsmen of the European Convention could not have envisaged
that it could provide a suitable framework or machinery for resolving
questions about the resort to war. They would have been vividly aware of the
United Nations Charter, adopted not many years earlier, and would have
recognised that as the instrument, operating as between states, which
provided the relevant code and means of enforcement in that regard, as
compared with an instrument devoted to the protection of individual human
rights.
3 The obligation of member states under article 1 of the Convention was
to secure to everyone within their jurisdiction the rights and freedoms in
the Convention. Subject to limited exceptions and specific extensions, the
application of the Convention was territorial: the rights and freedoms were
ordinarily to be secured to those within the borders of the state and not
outside.
Here, the deaths occurred in Iraq and the defendants they were clearly not
within the jurisdiction of the UK: see R (Al-Skeini) v Secretary of State
for Defence (The Times June 14, 2007; [2008] 1 AC 153, paragraphs
79, 129).
The complainants sought to overcome that problem, in reliance on authorities
such as Soering v United Kingdom (Application No 14038/88) ((1989) 11
EHRR 439). There was, however, an obvious distinction between the instant
case and Soering, and such later cases as Chahal v UK (Application
No 22414/93) ((1996) 23 EHRR 413) and D v UK (Application No
30240/96) ((1997) 24 EHRR 423).
But there was a more fundamental objection, that the complainants’ argument,
necessary to meet the objection of extraterritoriality, highlighted: the
remoteness of their complaints from the true purview of article 2.
Even if the complainants had been able to establish an arguable substantive
right under article 2, they would still have failed to establish a right to
a wide-ranging inquiry such as they sought.
The procedural right under discussion was a product of implication, and while
the implication of terms might be both necessary and desirable it was a task
to be carried out by any court, particularly a national court, with extreme
caution. That was because states ordinarily sought to express the terms on
which they agreed in a Convention such as this; terms which were not
expressed might have been deliberately omitted; terms, once implied, were
binding on all member states, and might be terms they would not have been
willing to accept: Brown v Stott (The Times December 6, 2000;
[2003] 1 AC 681, 703).
It was impossible to conceive that the proud sovereign states of Europe could
ever have contemplated binding themselves legally to establish an
independent public inquiry into the process by which a decision might have
been made to commit the state’s Armed Forces to war.
Lord Hoffmann, Lord Hope, Lord Scott, Lord Rodger, Lord Carswell, Lord Brown
and Lord Mance delivered concurring opinions; Lady Hale delivered an opinion
concurring in the result.
Solicitors: Public Interest Lawyers, Birmingham; Treasury Solicitor.
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