R (on the application of Gentle (FC) and another (FC)) (Appellants) v The Prime Minister and others (Respondents)

The investigative obligation under article 2 of the European Convention on Human Rights arises only where there is an arguable breach of a substantive obligation to respect or protect life. Article 2 does not require a state to refrain from an internationally unlawful war, or to exercise due diligence in determining a proposed war’s legality. The legality of military action has no direct bearing on the physical risk to service personnel.

Consequently, deaths during an overseas military operation do not require an article 2 inquiry into the governmental process for deciding to use force. The Convention’s investigative obligation concerns the circumstances in which a substantive right may have been violated. It does not extend to a general public inquiry into high-policy decisions concerning war and international relations.

The appellants were the mothers of two 19-year-old British soldiers killed while serving in Iraq. Investigations and inquests had examined the immediate circumstances of the deaths. The appellants sought judicial review requiring an independent public inquiry into the process by which the Government obtained advice about the legality of the 2003 invasion.

Collins J refused the claim in [2005] EWHC 3119 (Admin). The Court of Appeal dismissed the appeal in [2006] EWCA Civ 1689, [2007] QB 689. The appeal to the House concerned whether article 2 of the European Convention on Human Rights imposed a substantive duty to exercise due diligence in determining the invasion’s legality and, consequently, a procedural duty to investigate whether that obligation had been performed.

1. Appeal dismissed unanimously. Lord Bingham delivered the leading speech. Lord Hoffmann, Lord Hope, Lord Scott, Lord Rodger, Baroness Hale, Lord Carswell, Lord Brown and Lord Mance agreed that article 2 did not require the inquiry sought.

2. Per Lord Bingham, Lord Hoffmann and Lord Rodger, article 2 neither incorporated the United Kingdom’s obligations under the United Nations Charter nor imposed a duty owed to individual soldiers to refrain from an internationally unlawful war. It followed that article 2 imposed no independent duty to exercise due diligence in determining whether proposed military action would be lawful. A procedural duty to investigate the performance of such a duty would elevate procedure over a substantive obligation which did not exist.

3. Per Lord Bingham, Lord Hope, Lord Rodger and Lord Carswell, the legality of a military operation has no immediate or sustainable connection with the physical danger to service personnel. A lawful war may be highly dangerous, while an unlawful surprise attack may reduce danger to the attacking force. The alleged deficiencies in obtaining legal advice were therefore too remote from the deaths to constitute a relevant breach of article 2.

4. Per Lord Bingham, applying R (Middleton) v West Somerset Coroner [2004] UKHL 10, the procedural obligation under article 2 is ancillary or parasitic upon an arguable violation of a substantive obligation. Since no arguable substantive duty arose, no investigative duty was triggered. Even had a substantive duty been arguable, article 2 jurisprudence did not contemplate a wide-ranging inquiry into the governmental process leading to war.

5. Per Lord Hope, the Convention applies in principle to members of the armed forces, but its protection must reflect military life and the inherently dangerous operations for which service personnel are recruited, trained and equipped. Deployment overseas as part of an organised, properly equipped force does not itself violate the right to life.

6. Per Lord Bingham, the traditional restraint concerning peace, war, treaties and foreign relations supported the conclusion that the asserted right did not exist. Baroness Hale accepted that, if a Convention right required adjudication of such matters, the courts would have to adjudicate, but the subject matter remained relevant when deciding whether the Convention should be interpreted as creating the right.

7. Baroness Hale considered that soldiers under United Kingdom command and control could be within its jurisdiction, while Lord Bingham and Lord Carswell regarded that conclusion as inconsistent or questionable under the existing authority. This disagreement did not affect the result because the appeal failed on the absence of a substantive article 2 duty.

1. House of Lords: The appeal was dismissed unanimously in [2008] UKHL 20.
2. Court of Appeal: The appeal was dismissed in [2006] EWCA Civ 1689, [2007] QB 689.
3. High Court, Administrative Court: Collins J dismissed the claim in [2005] EWHC 3119 (Admin).