Gentle, R (on the application of) & Anor v The Prime Minister & Anor

The appellants, mothers of two soldiers killed in Iraq, sought a legally enforceable right under sections 1 and 2 of the Human Rights Act 1998 and Article 2 of the European Convention on Human Rights to require the Government to hold an independent public inquiry into the decision-making leading to the 2003 invasion of Iraq, including the Attorney General's legal advice. The House held that the procedural obligation to investigate under Article 2 is parasitic on an arguable substantive Article 2 breach and that Article 2 does not give rise to a general duty to ensure the lawfulness of a resort to armed force under international law.

The court rejected arguments based on extra-territorial application, causation and relevance: the risk to soldiers from deployment is not made contingent on the international-law legality of a war, Article 2 was not intended to police compliance with the United Nations Charter between states, and established Strasbourg jurisprudence does not contemplate the wide-ranging inquiry sought. The appeal was therefore dismissed.

This appeal concerned claims by two mothers that Article 2 ECHR and the Human Rights Act 1998 entitled them to require a public independent inquiry into the process by which the United Kingdom decided to participate in the 2003 invasion of Iraq, with a particular focus on the Attorney General's legal advice.

Background and parties:

• The appellants were the mothers of Trooper David Clarke and Fusilier Gordon Gentle who died while serving in Iraq. Inquests and military investigations into their deaths had taken place and narrative findings were returned in respect of the circumstances of those deaths.
• The respondents were the Prime Minister and other government ministers. Proceedings reached the House of Lords after dismissal at first instance (Collins J) and by the Court of Appeal ([2006] EWCA Civ 1689).

Nature of the claim and relief sought:

• The appellants sought a declaration that Article 2 had been violated and an order that an independent public inquiry be held with a remit to examine the circumstances of the deaths, including whether the decision to use force against Iraq was lawful and whether the Government had taken due diligence in obtaining legal advice.

Issues framed by the court:

• Whether Article 2 imposes a substantive duty on the state to take due diligence steps before going to war to ensure its lawfulness under international law.
• Whether, if an arguable substantive breach exists, Article 2 imposes a procedural obligation to hold an independent public inquiry into the decision-making process leading to the deployment.
• Whether the claimed duty is justiciable, whether the deaths were within the United Kingdom's Convention jurisdiction, and whether any breach would be a relevant cause of the deaths.

Reasoning:

• The House reiterated Strasbourg authority that Article 2 entails both substantive and procedural obligations but emphasised that the procedural duty to investigate is parasitic on an arguable substantive breach. It was therefore necessary to show at least an arguable substantive Article 2 duty giving rise to liability for exposing soldiers to risk.
• The Law Lords concluded there was no warrant for construing Article 2 as imposing a generalised duty to ensure the lawfulness of a resort to armed force under international law. The Convention was not designed to police relations between states under the United Nations Charter; implying such an obligation would be inconsistent with the Convention's purpose and with the limits of judicial competence in matters of high policy and foreign relations.
• Even if a substantive duty could be imagined, the inquiry sought was disproportionate and legally remote from the causes of death: the lawfulness of a war has no necessary bearing on the physical risk soldiers face, and a lawful war can be as dangerous as an unlawful one. The extraterritorial element and established Strasbourg jurisprudence did not support the broad inquiry requested.

Conclusion: The House dismissed the appeal. The procedural Article 2 obligation to investigate was not engaged because no arguable substantive Article 2 breach was made out in respect of the decision to use force in Iraq.

Appeal dismissed. The House held that Article 2 does not impose a substantive duty on the state to take due diligence steps to ascertain the legality under international law of a decision to go to war, and that the procedural obligation to hold an independent public inquiry under Article 2 arises only where there is an arguable substantive breach; consequently the wide-ranging inquiry sought was not required.

Permission refused at first instance by Collins J ([2005] EWHC 3119 (Admin)); appeal to and dismissal by the Court of Appeal ([2006] EWCA Civ 1689). The matter was then heard by the House of Lords ([2008] UKHL 20) which dismissed the appeal.