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

This is an application for judicial review of the refusal by the government to hold an independent inquiry into the circumstances which led to the invasion of Iraq. The application was originally heard by Collins J, who refused it on 20 December 2005. He also refused permission to appeal but the application was renewed to this court and adjourned by the Lord Chief Justice to be heard on notice to the respondents. We heard the application and on 26 July 2006 decided that this was a proper case in which to grant permission, not on the basis that we had concluded that the application for judicial review had a real prospect of success within the meaning of CPR 52.3(6), but on the basis that, because of the importance of the issues, there was a compelling reason why an appeal should be heard. We then considered whether, instead of giving permission to appeal, we should give permission to apply for judicial review under CPR 52.15(3) and, if so, whether this court should consider the application under CPR 52.15(4). We answered both questions in the affirmative and reserved the application to the same constitution. We have now heard detailed argument on the application.

The original application before the judge was brought by the relatives of six members of the armed forces who lost their lives while serving in Iraq. There are now only two applicants, Rose Gentle and Beverley Clarke. The invasion of Iraq began on 20 March 2003 and Mrs Clarke’s son, Trooper David Clarke, was killed only five days later on 25 March. He was killed by ‘friendly fire’. Mrs Gentle’s son, Fusilier Gordon Gentle, was killed by a roadside bomb on 28 June 2004.

The applicants seek judicial review of the refusal by the government to hold an independent inquiry into the circumstances which led to the invasion of Iraq. As outlined by Mr Rabinder Singh QC on their behalf, the applicants seek an inquiry by reason of the terms of article 2 of the European Convention on Human Rights (“the Convention”) into the question whether the government took reasonable steps to be satisfied that the invasion of Iraq was lawful under the principles of public international law. We will call that ‘the invasion question”. The applicants do not seek an inquiry into the physical circumstances in which Fusilier Gentle and Trooper Clarke were killed.

In the case of Fusilier Gentle there will be an inquest. In the case of Trooper Clarke there cannot unfortunately be an inquest because no mortal remains were recovered so as to give a coroner jurisdiction. However, Trooper Clarke died at the same time as Corporal Allbutt and the coroner who is investigating the death of Corporal Allbutt has agreed that the family of Trooper Clarke will be treated as an interested party at that inquest. The position is therefore that the circumstances surrounding the deaths of both Fusilier Gentle and Trooper Clarke will be investigated at inquests. The applicants thus accept that the only relevant question which will not be considered at the proposed inquests is the invasion question. If (contrary to the respondents’ case) the applicants are entitled to an investigation into the invasion question under article 2, no one has suggested that the invasion question could or should be considered at an inquest.

The question which the applicants now seek to have investigated is not quite the same question as that formulated when the case was before the judge. In the claim form the remedy sought by the applicants was formulated as follows:

It can immediately be seen that that is not the same question as the invasion question identified above, namely whether the government took reasonable steps to be satisfied that the invasion of Iraq was lawful under the principles of public international law. The reason the questions are different is because the applicants’ case depends entirely upon article 2 of the Convention and because it is correctly accepted by Mr Singh that there could be no duty to investigate the lawfulness of the invasion under article 2.

Article 2, which is entitled “Right to Life”, provides by paragraph 1 that “everyone’s right to life shall be protected by law”. It is common ground that article 2 imposes both substantive and procedural (or adjectival) obligations on contracting states. Those obligations are authoritatively summarised by Lord Bingham, giving the opinion of the Appellate Committee, in R (Middleton) v West Somerset Coroner [2004] UKHL 10, [2004] 2 AC 182, at [2] and [3]:

In the light of those principles it is common ground that the procedural obligation upon a member state to conduct an inquiry only arises where there is at least arguably a breach of the substantive obligation. On that basis it follows that the first question for consideration is whether the applicants have an arguable case that the United Kingdom is in breach of that obligation. It further follows that the question is whether the United Kingdom is arguably in breach of the obligation identified by Lord Bingham in Middleton.

It has not, so far as we are aware, been suggested in the present case that the United Kingdom took the lives of either of the deceased, whether without justification or at all. Even if it could be said that it took the life of Trooper Clarke, who was killed by ‘friendly fire’, without justification, it is not said that it is that fact which triggers the need for an inquiry into the invasion question. As we understand it, it is accepted that the physical circumstances of Trooper Clarke’s death, including how he came to be killed by ‘friendly fire’, will be investigated by the coroner at an effective public investigation by an independent official body, namely the coroner, at the inquest into the death of Corporal Allbutt. Moreover, it is not suggested that such an inquiry will not satisfy article 2 (if it is otherwise applicable), so far as the physical circumstances of the death are concerned. That is because it will be an inquiry into ‘by what means and in what circumstances’ Trooper Clarke and Corporal Allbutt died: see eg Middleton at [30] to [32] and R (Takoushis) v Inner North London Coroner [2005] EWCA Civ 1440, [2006] 1 WLR 461 at [81].

The applicants’ case that the United Kingdom is in breach of the substantive obligation implicit in article 2, as explained in Middleton, is put in this way. It is the substantive obligation of member states, in the words of Lord Bingham, to establish a framework of precautions and procedures which will, to the greatest extent reasonably practicable, protect life. In the present context, where a member state owes duties to the members of its armed forces, that obligation includes taking reasonable steps to ensure that it does not send such men and women to take part in unlawful military activities. So, on the facts, it is said that it is at least arguable that the United Kingdom was in breach of article 2 by sending men and women to take part in the invasion of Iraq without taking reasonable steps to satisfy itself that the invasion was lawful as a matter of public international law.

It is further said that it follows that the United Kingdom has a procedural obligation under article 2, again in the words of Lord Bingham, to initiate an effective public investigation by an independent official body into the deaths of Fusilier Gentle and Trooper Clarke because they occurred in circumstances in which it appears that the United Kingdom was or may have been in breach of the substantive obligation set out above by failing to take reasonable steps to satisfy itself as to the lawfulness of the invasion under international law. It is said that the agents of the state are, or may be, implicated because of the circumstances in which the Attorney General came to make a statement in the House of Lords on 17 March 2003 to the effect that the United Kingdom was entitled to use force against Iraq because of the terms of Security Council resolution 678 of 29 November 1990 when read together with resolution 1441 of 8 November 2002, on the ground that Iraq had failed to comply with and co-operate fully in the implementation of resolution 1441.

As already stated, on the basis of the common ground identified above, the procedural obligation only arises if there is at least an arguable breach of the substantive obligation. We return briefly below, at paragraphs 77 and 78, to the question whether the procedural obligation to hold an inquiry can exist in the absence of an arguable case of breach of the substantive obligation in article 2 and, if so, whether such a possibility affects the correct approach to this appeal. We will first refer briefly to the facts relied upon by the applicants and then, given the common ground, we will consider the question whether the substantive obligation identified in Middleton includes a requirement that a member state should take reasonable steps to ensure that it does not send such men and women to take part in unlawful military activities or, put another way, that it does not send them to face the risk of death without taking reasonable steps to ensure that the military activities are lawful. These are simply different ways of putting the same point.

The facts relied upon by the applicants may be shortly stated. On 2 August 1990 Iraq invaded Kuwait. On the same day the Security Council issued resolution 660, which determined “that there exists a breach of international peace and security as regards the Iraqi invasion of Kuwait” and demanded the immediate and unconditional withdrawal of Iraqi forces. Four days later, on 6 August, resolution 661 stressed the Security Council’s determination “to bring the invasion and occupation of Kuwait to an end” and affirmed the inherent right of individual or collective self-defence under article 51 of the Charter. About four months later, on 29 November 1990, resolution 678 authorised member states, unless Iraq withdrew by 15 January 1991, fully to implement those resolutions and “to use all necessary means to uphold and implement resolution 660 and all subsequent resolutions, and to restore international peace and security in the area.”

By 2 March 1991, military action to end the invasion had been successful and resolution 686 confirmed all previous resolutions on the issue and demanded that Iraq should implement its withdrawal, provide appropriate compensation and return Kuwaiti property. Resolution 686 also referred to the fact that allied forces were “present temporarily in Iraq” and recognised the fact that “during the period required for Iraq to comply” the provisions of paragraph 2 of resolution 678 remained valid, thus including its reference to “all necessary means”. On 3 April 1991 resolution 687 recognised the cease-fire at the end of the first Gulf war.

On 8 November 2002 the Security Council passed resolution 1441. On 26 May 2006 (which was after the decision of the judge) the Attorney General issued a written Ministerial Statement to the effect that the Cabinet Office and the Legal Secretariat to the Law Officers had issued a Disclosure Statement in compliance with an Enforcement Notice issued by the Information Commissioner. The disclosure statement described the process from the adoption of resolution 1441 to 7 March 2003, on which date the Attorney General signed a thirteen page written opinion addressed to the Prime Minister which considered the possible legal basis for the use of force in some detail. He identified the key question as being whether resolution 1441 had the effect of authorising force under Chapter VII of the Charter. He set out the rival arguments in some detail.

The Attorney General’s summary included the following:

In paragraphs 32 to 35 the Attorney General considered possible consequences of proceeding without a second resolution and he concluded as follows under the heading of proportionality:

On 11 March the Chief of the Defence Staff said that he would need a clear indication of the legal position for the purposes, as the disclosure statement put it, “of his directive to members of the Armed Forces”. The disclosure statement added:

The Attorney General agreed that in these circumstances it would be proper for the Legal Secretary to confirm to the Ministry of Defence that the proposed military action would be in accordance with national and international law. He did so on 14 March. Also on 14 March the Legal Secretary wrote to the Prime Minister seeking confirmation (previously given orally) that “it is unequivocally the Prime Minister’s view that Iraq has committed further material breaches as specified in paragraph 4 of resolution 1441”. The Private Secretary to the Prime Minister gave that written confirmation on 15 March.

On 17 March the Attorney General made this written statement to the House of Lords:

There has been much legal and political debate on the questions whether the invasion of Iraq was justified under international law and whether it was justified politically or otherwise. Mr Singh submits that it is at least arguable that the government failed to take reasonable steps to ensure that it was justified under international law. As we have already said, it is that which he says should be investigated at an independent inquiry. He relies, no doubt among other things, upon the views of legal commentators of high repute. He relies in particular upon the opinions expressed by Lord Alexander of Weedon QC in an article entitled “Iraq: The Pax Americana and the Law”, which was written in 2003 after the invasion had begun.

That article included this:

Mr Singh relies upon Lord Alexander’s views in support of his submission that it is at least arguable that the United Kingdom is in breach of its obligations under article 2. He also relies upon the views of others, including Lord Steyn, who has expressed the view that in the present context the government is scraping the bottom of the legal barrel. However, in this application we are not asked to express a view one way or the other on the lawfulness of the war or upon the reasonableness or otherwise of the steps taken in this regard by the government as a whole or the Attorney General in particular. For this reason it would not be appropriate for us to express a view and we do not do so.

As stated above, the applicants’ case is that the United Kingdom owes a procedural obligation under article 2 to initiate an effective public investigation by an independent official body into the deaths of Fusilier Gentle and Trooper Clarke because they occurred in circumstances in which it appears that the United Kingdom was or may have been in breach of the substantive obligation set out above by failing to take reasonable steps to satisfy itself as to the lawfulness of the invasion under international law. Mr Singh submits that the obligation so stated simply arises out of the formulation in Middleton. Mr Jonathan Sumption QC accepts on behalf of the respondents that a member state owes a duty to establish a framework of laws and procedures which will, to the greatest extent reasonably practicable, protect life. He further accepts that, even where there is a compliant framework of laws and no deliberate killing by the state, the substantive obligation may in some circumstances be infringed by causing a person to be exposed to the risk of being killed by a third party. However, he submits that there is no obligation of the kind asserted by Mr Singh for four main, but inter-related, reasons.

Those reasons are these:

The decision to deploy armed forces in a foreign conflict in which they are killed is not of itself capable of being in breach of the substantive obligation in article 2 to protect life. Such risks are inseparable from any decision by a state to engage in military operations and such a decision does not itself engage any provision of the Convention.

Even if there were a Convention obligation to investigate deaths occurring in the course of military operations overseas, the lawfulness of those operations as a matter of international law would be irrelevant to such an investigation, as a matter of causation.

Subject to limited exceptions, which do not arise on the facts, the Convention and the Human Rights Act 1998 (‘the HRA’) impose obligations on the state in relation to matters occurring within the territory of the United Kingdom. Neither the substantive nor the procedural obligations in article 2 apply to deaths occurring outside the United Kingdom. The fact that the death occurred in the course of military operations resulting from a prior political decision in the United Kingdom makes no difference.

The extra-territorial actions of a state are not justiciable and nothing in the Convention makes them justiciable.

It is common ground that, apart from the Convention, these applications must fail. The applicants do not advance any case other than under article 2 of the Convention. Absent the Convention, the starting point is the proposition that issues relating to the conduct of international relations and military operations outside the United Kingdom are not justiciable. That proposition is supported by two further propositions. The first is that constitutionally such matters lie within the exclusive prerogative of the executive and the second is that they are governed by international and not domestic law: see generally Buttes Gas and Oil Co v Hammer [1982] AC 888, per Lord Wilberforce at pages 932 to 937, JH Raynor Ltd v Department of Trade [1990] 2 AC 418 per Lord Oliver at pages 499 to 500, R (Abbasi) v Secretary of State for Foreign and Commonwealth Affairs [2002] EWCA Civ 1598, [2003] UKHRR 76 per Lord Phillips MR, giving the judgment of the court, at [83] to [106] and, most recently, R v Jones [2006] UKHL 16, [2006] 2 WLR 772, per Lord Bingham at [30] and Lord Hoffmann at [67].

By way of example of the first of the above propositions, it is sufficient to refer to paragraphs [84] and [85] in Abbasi. The court was there referring to the speeches of Lord Scarman and Lord Diplock in Council of Civil Service Unions v Minister for the Civil Service [1985] 1 AC 374 (the GCHQ case). It said:

It is because of the principles there set out that Mr Singh correctly accepts on behalf of the applicants that, in the absence of article 2 of the Convention, they could not challenge the decision of the United Kingdom to send its military forces to Iraq. There were no doubt a number of reasons for the decision to take that step. The decision was based, not only on the view that the invasion was lawful as a matter of international law, but also on the view of the government that the interests of the United Kingdom would be best served by doing so. It involved what Taylor LJ described as matters of high policy or, as Lord Diplock put it, competing considerations which, if the executive discretion is to be wisely exercised, need to be weighed against each other – a balancing exercise which judges are ill-qualified to perform.

The second proposition can best be seen in the present context from the decision of the Divisional Court in R (CND) v Prime Minister [2002] EWHC 2777 (Admin), [2003] LRC 335. CND sought by judicial review an advisory declaration as to the meaning of UN Security Council resolution 1441, which afforded Iraq “a final opportunity to comply with its disarmament obligations” and, in particular, as to whether the resolution authorised states to take military action in the event of non-compliance by Iraq with its terms. CND said that the purpose of its application was to ensure that the government did not in the future embark upon unlawful military action against Iraq through an erroneous understanding of the true legal position. CND invited the court to declare that the government would be acting in breach of international law were it to take military action against Iraq without a further resolution.

The court refused to grant the declarations sought. In giving the leading judgment, Simon Brown LJ asked whether the court should declare the meaning of an international instrument operating purely on the plane of international law. He said at [36] that the answer was plainly no. He observed that all the cases in which the court has pronounced on some issue of international law are cases where it has been necessary to do so in order to determine rights and obligations under domestic law. He gave a number of examples including Abbasi and R v Lyons [2002] UKHL 447, [2003] 1 AC 976, especially per Lord Hoffmann at [27] and [40]. Just as in Lyons the House of Lords had refused to take account of the state’s duty in international law since it did not properly sound in domestic law, so in CND the court refused to express a view upon the meaning and effect of UN resolution 1441. Simon Brown LJ put it thus at [37]:

Maurice Kay J agreed with Simon Brown LJ, although principally on the basis of the first of the two propositions which we identified earlier. He noted at [50] that there were what Lord Phillips had described in Abbasi at [106](iii) as forbidden areas and concluded that the subject matter of CND’s application fell within them. He quoted Lord Fraser in the GCHQ case as referring to

Richards J first rejected the application on discretionary grounds but also agreed at [59] and [60] that the claim was not justiciable on the ground that it would take the court into areas of foreign affairs and defence which were the exclusive responsibility of the executive government and thus one of the forbidden areas. In this connection he expressly rejected the submission that it was possible to isolate a purely judicial or legal issue as “a clinical point of law”. Richards J also set out at [61] detailed reasons for agreeing that the application must fail on the ground that it asked the national court to declare the meaning and effect of an instrument of international law, viz resolution 1441.

As we see it, apart from the possible effect of the HRA and the Convention, the position may be summarised as follows. The question whether the United Kingdom acted unlawfully in sending its armed forces to Iraq is not justiciable for one or both of two reasons, namely that it would involve a consideration of at least two international instruments, viz Security Council resolutions 678 and 1441, and that it would involve a detailed consideration of decisions of policy made in the areas of foreign affairs and defence which are the exclusive responsibility of the executive government, in the exercise of what Lord Hoffmann called in Jones at [67] “the discretionary nature or non-justiciability of the power to make war”, and thus one of the forbidden areas. It is important to note that the court in CND rejected the submission that it would be possible to consider legal questions of international law while respecting the principle of the non-justiciability of non-legal issues of policy. It was in our opinion correct to do so because we can see no basis upon which it would be possible sensibly to consider one without the other. They are closely bound up together.

In our judgment, the same reasoning would lead to the conclusion that, absent the HRA and the Convention, the question whether reasonable steps were taken to consider whether the sending of British troops to Iraq was lawful is not justiciable. Equally, we can see no basis upon which the court could properly order an inquiry into that question.

Mr Singh does not, however, submit that the CND case was wrongly decided. Nor does he submit that the conclusions in paragraphs 33 and 34 are wrong. He seeks to distinguish the CND case and to persuade the court to reach different conclusions in principle on the basis that the effect of the HRA is to introduce the provisions of the Convention into English domestic law. He submits that by that route article 2 of the Convention has obtained, as Simon Brown LJ put it, a foothold in English law. The question is whether that submission can be accepted. As we see it, the answer depends upon the true construction of the Convention. The parties’ submissions proceed from very different starting points. Mr Singh submits that the Convention is intended to apply the principles of international law, whereas Mr Sumption submits that most, if not all, member states adopt the principle of separation of powers as between the executive and the court and that it is inconceivable that the draftsmen of the Convention intended either the national courts of member states or the European Court in Strasbourg to enter into disputes between states. Those remain matters for the International Court of Justice: see CND per Simon Brown LJ at [36].

Mr Singh simply submits that there is nothing in the Convention which prevents the court of a member state from considering whether there was a breach of the substantive obligation in article 2 or from ordering an inquiry under article 2 if there is an arguable breach of article 2. He submits that the court could only refuse to take either step if it were forbidden by the Convention, which it is not. The applicants are entitled to at least the same rights under the HRA as they are under the Convention: R (Ullah) v Special Adjuducator [2004] AC 323, per Lord Bingham at [20]. The Convention recognises no forbidden areas:

There is nothing in the text which suggests that there are such areas.

There is no Strasbourg jurisprudence which precludes consideration of particular subject matters and the court has engaged in highly sensitive areas of government such as the activities of secret service organisations: McCann v UK (1996) 21 EHRR 97.

The domestic courts have been willing to enter what might otherwise have been forbidden areas in identifying and upholding Convention rights: see eg A v Secretary of State for the Home Department [2004] UKHL 56, [2005] 2 AC 68 and A v Secretary of State for the Home Department (No 2) [2005] UKHL 71, [2006] 2 AC 221. The latter case was of course concerned with evidence obtained in cases of torture.

Similarly, domestic courts routinely consider the behaviour of foreign states, as for example when considering whether there is a real risk that deportation to a particular state will result in torture or persecution.

It would be strange indeed if a Convention designed to protect individuals from abuse of power on the part of the state permitted the government what amounts to immunity from judicial review in such important areas.

In particular, article 15 of the Convention and article 1 of protocol 1 show that the principles of international law are imported into the Convention.

In short, Mr Singh submits that there are no forbidden areas in the Convention and that there is no principle of non-justiciability which puts some potential violations of article 2 out of bounds. The derogation provisions and the torture decisions involved the courts considering questions of high policy. Given that the historical origins of the Convention were the appalling human rights abuses which occurred during the Second World War, it is inconceivable that the member states intended to exclude some acts or omissions which would otherwise be breaches of the Convention.

There is undoubted force in these submissions and it is correctly accepted by Mr Sumption that, as Lord Bingham and Lord Hoffmann put it in Jones, the principle of non-justiciability cannot prevent the courts from giving effect to a Convention right once such a right is shown to exist. This can also be seen in a similar context in the discussion and decision of the Supreme Court of Canada in Operation Dismantle v The Queen [1985] 1 SCR 441, where the court was considering not (of course) the Convention but the Canadian Charter of Rights and Freedoms. However, if Mr Singh’s submissions are correct, although the Convention does not expressly say so, the changes made to it radically alter the relationship between the role of the executive and the role of the courts in whole areas which were traditionally regarded as within the exclusive domain of the executive. We accept Mr Sumption’s submission that the fact that the right relied upon by the applicants, if it exists, would involve the courts in examining matters traditionally regarded as non-justiciable, is a factor militating against its existence.

The right asserted by the applicants is not expressed in article 2. It is an implied right. We note in passing in this regard that, in Brown v Stott [2003] 1 AC 681, Lord Bingham said (at page 203F-G) that, while some implication of terms was necessary in the Convention, the process of implication should be carried out with caution if the risk is to be averted that the contracting parties (or member states) may, by judicial interpretation, become bound by obligations which they did not expressly accept and may not be willing to accept.

We should refer in this regard to R (Marchiori) v The Environment Agency [2002] EuLR 225. Although the case was not concerned with the Convention but with the Euratom Treaty, in the course of his judgment Laws LJ touched upon the issues with which we are concerned at [38] to [41]. In summary, he said at [38] that the law will not contemplate what might be called a merits review of any honest decision of government on matters of defence policy. At [39] he noted that the intensity of judicial review depends upon its context and that one context will shade into another. Thus there is a distinction between a deportation decision affecting a specific individual, as in Rehman, and a decision of defence policy such as Trident, although (as he put it) both involve matters of security. He said at [40] and [41]:

It is no doubt in part because of those considerations that Mr Singh does not submit that, absent bad faith (which is not suggested), it would be appropriate for the court judicially to review the decision to send troops to Iraq on the basis that the decision was irrational. As Laws LJ puts it, the courts are in no position to put limits on the exercise of the executive’s power in relation to defence policy. Moreover, it is not suggested that the court could review such a decision under the Convention. The sole question is whether article 2 imposes upon the government an obligation, justiciable in England, to take reasonable care to ensure that its servicemen and women will not be sent on an operation which is unlawful under international law.

We have reached the conclusion that, on its true construction in the context of the Convention as a whole, article 2 does not impose any such obligation. One of the principal reasons which has led us to this conclusion is that, as we see it, no sensible distinction can be made between a duty to take reasonable care to ensure that the operations are lawful, on the one hand, and militarily or politically desirable or sensible on the other. In each case any breach of the duty may lead the soldiers to be killed. Yet it is not, as we understand it, suggested that a member state owes a duty to take reasonable steps to check whether the particular operation is militarily or politically desirable or sensible.

The reason why no such suggestion is made is that it is accepted that these are questions of policy and within the exclusive discretion of the state. Thus it is accepted that, notwithstanding the existence and terms of the Convention, including article 2, individual soldiers have no right under article 2 not to be sent on a military operation unless all reasonable steps have been taken to ensure that it is a politically or militarily sensible operation. It does not of course follow that those concerned cannot complain about it, but their complaints must be aired at what is sometimes called the bar of public opinion and resolved at the ballot box.

The question then arises what distinction can there be between the existence of a duty implied into article 2 to take reasonable care to ensure that the operation is lawful under international law on the one hand and to ensure that it is militarily or politically desirable on the other. We can see no way in which it is possible to spell out of the Convention as a whole or out of article 2 in particular a duty in the one case and not in the other. In this respect, the position seems to us to be the same as that described by Richards J in the CND case. It is not possible to isolate a purely judicial or legal issue as “a clinical point of law”.

This conclusion seems to us to receive some support from the reasoning process which was carried out by the Attorney General in reaching his conclusion as described in paragraph 24 of the disclosure statement quoted above. We note in particular two points. The first is that the Attorney General had regard to the negotiating history of resolution 1441 and his discussions with Sir Jeremy Greenstock, who was the United Kingdom’s ambassador at the United Nations at the time of resolution 1441, and the representatives of the US Administration. The second point is that (according to the statement), in coming to the conclusion that the better view was that a further resolution was not legally necessary, the Attorney General had been greatly assisted by the background material he had seen on the negotiation of resolution 1441.

If that account of the Attorney General’s reasoning process is accepted, it emphasises Richards J’s point that it is not possible to isolate a clinical point of law. The determination of the question whether the invasion was lawful as a matter of international law will involve not only the construction of one or more international instruments in the form of Security Council resolutions but also, whether or not as part of the process of construction, a consideration of the discussions and negotiations between states leading to them. Those discussions and negotiations may well have involved political questions as well as legal questions.

Yet in the course of his opening of the application we understood Mr Singh to accept, in the context of the proposed inquiry, that it would not be appropriate to set up an inquiry which would involve the person conducting it investigating questions of political or military policy. This concession seems to us to put Mr Singh in something of a difficulty. If an inquiry were ordered into the invasion question, the inquiry would have to consider the question whether all proper steps were taken by the government to ensure that it was lawful under international law to send British troops to take part in military operations in Iraq. That would inevitably involve a consideration, not only of the acts and omissions of the Attorney General and those advising him, but also of the lawfulness of the operations. We do not see how it would be possible to avoid considering that question as part of the inquiry. Nor, for the reasons we have given would it be possible to avoid considerations of policy.

What is essentially the same problem seems to us to arise in connection with causation. Issues of causation would, at least potentially, arise on the assumption that it was concluded that all proper steps were not taken to ensure that the operation was lawful. Mr Singh was initially inclined to accept that on that footing an inquiry would (or might) involve considering whether troops would nevertheless have been sent to Iraq and, if that were so, that the inquiry would or might involve considering what decisions the Prime Minister or the Cabinet would or might have taken, which would or might have involved questions, not only of international law but of foreign relations and political and military policy. We do not think that there is anything in the Convention which supports the conclusion that the member states contemplated that such an inquiry might be required by article 2 of the Convention. Article 2 certainly contains no such express obligation and we are not persuaded that it is appropriate to imply such a term into it.

In the later stages of his argument Mr Singh submitted that there was no need for an inquiry into such questions on the facts of this case because it could be accepted that, if the government had taken reasonable steps to ensure that it was lawful under international law to send troops to Iraq, it would have ascertained that it was not and that in those circumstances it would not have sent any British servicemen or women to Iraq.

The difficulty with that argument is this. Let it be supposed that it is correct. The question we have to decide in the first instance is not what issues of causation will arise on the facts of this case but a broader question of the construction of the Convention. Whether a member state would be required to set up an inquiry into such matters depends upon the true construction of article 2 of the Convention. It is not difficult to envisage cases in which there might be a real issue as to how a government of a member state, not necessarily the United Kingdom, would have reacted in the light of legal advice that military operations were not or might not be lawful. States make political and military decisions for many reasons. In such circumstances, it might well be arguable that a state would have undertaken the operations notwithstanding the advice. In that event, on the applicants’ case, they would have been entitled to an inquiry which would encompass the question whether the operations were caused by a failure to take reasonable steps to ensure that the operations were lawful. That would in turn involve an investigation of policy as well as international law.

In all these circumstances, we have reached the conclusion that the applicants have not demonstrated an arguable breach of the substantive obligation in article 2 of the Convention and that article 2 does not entitle them to an inquiry into the invasion question. Although we accept Mr Singh’s submission that there is nothing in the express terms of the Convention to require that conclusion, there is equally nothing in the Convention or either the Strasbourg or English jurisprudence to require any other conclusion.

As to Strasbourg, there are indications in the jurisprudence that there are some issues which cannot form the subject matter of an inquiry under article 2. In Taylor v United Kingdom, Application 23412/94 dated 30 August 1994, the parents of children who were murdered by Beverley Allitt, who was a hospital nurse, sought a public independent inquiry. Ms Allitt had been convicted of murder after a trial and there had been an investigation into the deaths which was held in private. The families wanted a much more far-reaching inquiry, which was refused by the United Kingdom. In ruling that the application was inadmissible on the ground that it did not disclose any failure by the United Kingdom to comply with “the positive obligations, including any procedural requirements, imposed by article 2”, the Commission said this:

Similarly in the recent case of McBride v United Kingdom (2006) 43 EHRR SE10 the applicant’s son was killed by two soldiers in Northern Ireland. They were convicted of murder. They were released from prison after six years and returned to serve in the army. They continued to serve in the army notwithstanding decisions of the courts in Northern Ireland. The applicant argued (among other things) that the procedural obligations in article 2 of the Convention required that the soldiers be discharged from the army in order to reassure the public as to the state’s adherence to the rule of law and its lack of tolerance for breaches of fundamental rights. The European Court ruled the application inadmissible. In doing so it held that the criminal trial was sufficient. It said at pages 109 to 110:

We should also refer in passing to a statement in Jordan v United Kingdom (2003) 37 EHRR 2, where the court held that there had been a violation of article 2 by the United Kingdom in that it failed to carry out a sufficient investigation of Pearse Jordan’s death after he was killed by an officer of the RUC. The breach identified by the court (at [130]) was that the inquest which had been held could play no effective role in the identification or prosecution of any criminal offences which might have occurred and that, in that respect, the United Kingdom fell short of the requirements of article 2. However at [128] the court said this in the context of the inquest:

Although the facts of the instant case are very different from those in Taylor, McBride or Jordan, those cases show that there are limits to the breadth of the Convention and in our judgment the issues of policy which would be likely to be raised by the inquiry proposed in this case fall outside the scope of article 2 for the reasons which we have given.

As to England, there is nothing in Middleton or any of the other cases to which we have been referred to support Mr Singh’s submissions. There is nothing, for example, in the statements of principle in paragraphs 2 and 3 of Lord Bingham’s speech in Middleton to suggest that, when he referred to the duty to establish a framework of laws, precautions, procedures and means of enforcement, he had a case like this in mind. In R (Amin) v Home Secretary [2003] UKHL 51, [2004] 1 AC 653 Lord Bingham summarised the purposes of an investigation under article 2 at [31]:

We should refer in this connection to a recent decision of this court in Scholes v Secretary of State for the Home Department [2006] EWCA Civ 1343, where the applicant’s son Joseph, who was only sixteen years old and had recently been sentenced to a two year detention and training order, hanged himself while in his cell in the healthcare unit at a Young Offenders’ Institution. At the subsequent inquest the coroner expressed the view that there should be a comprehensive review of the pre-sentence exercise, the allocation process and the availability and provision of Local Authority Secure Children’s Homes. The coroner further recommended that in all the circumstances the review should take the form of a public inquiry where all interested parties could make their views known. He contemplated that the inquiry would include a consideration of sentencing policy, which he said was an essential ingredient but outside the scope of the inquest. The Secretary of State refused to order such an inquiry and the applicant challenged that decision by way of judicial review. Bennett J refused the application. The applicant appealed to this court, comprising Pill and Arden LJJ.

Pill LJ referred to a number of authorities including Taylor and Jordan. It appears that the court may not have been referred to McBride. At [66] Pill LJ expressed the view that the evaluation of the circumstances in which Joseph died at the inquest was thorough but added that the purpose of an investigation under article 2 is not complete unless it is followed up. At [67] he said this about the ‘wider questions’ referred to in the passage from Taylor quoted above:

Pill LJ however then considered whether some further inquiry should be ordered and held that it should not because of the various steps which had been taken, including remedial steps taken by the government in the particular circumstances being considered there. Those steps were in particular the inquest and the measures taken, which included input into the Sentencing Guidelines Council. We do not read Pill LJ as encouraging the view that it is the role of an investigation under article 2 to spread into areas of policy. On the contrary, it appears to us that he recognised that there are areas which remain essentially matters of policy for the executive. Thus he said at [73]:

Arden LJ expressly recognised the different types of question which may arise. At [81] she recognised the democratic basis of the Convention by reference to a passage in the speech of Lord Bingham in the first A case at [42]. She then contrasted legal and political questions at [82] and [83] as follows:

While we recognise that none of these cases is determinative of the issues in this appeal, they do seem to us to point the way. While it is true, as Mr Singh submits, that the Convention contains references to international law, none of them seems to us to lead to the conclusion that the draftsmen of the Convention intended to import the whole of international law into the Convention, which is after all concerned with domestic rights. If the Convention had intended to be as far-reaching as the applicants suggest, the preamble would have so stated. In any event, in our view none of the references to international law in the Convention supports the conclusion that the United Kingdom is arguably in breach of article 2 or that it is under a duty to hold an inquiry into the invasion question.

As already stated, Mr Singh relies upon two particular provisions. The first is article 15. Articles 1 and 15 provide:

Mr Singh submits that the Convention envisages that there can be a review of executive decisions in relation to armed conflicts and to the state’s obligations under international law. Thus article 15 demands consideration of whether a derogation is both strictly required and not inconsistent with other obligations, even in time of war. Even then, a derogation from article 2 is permitted by the Convention only to the extent that it relates to “lawful” acts of war. This necessarily assumes that there may be acts of war done by a member state which are not lawful and therefore cannot form the basis for a lawful derogation from article 2.

Those submissions undoubtedly have some forensic force. There is, so far as we are aware, very little jurisprudence on article 15. However, in Bankovic v Belgium (2001) 11 BHRC 435 at [62] the European Court rejected the applicants’ suggestion that article 15 applied to all war and public emergency situations whether occurring inside or outside the territory of the contracting state. It said that, although there had been a number of examples of extra-territorial action, no state had indicated a belief that its extra-territorial actions involved an exercise of jurisdiction within the meaning of article 1 of the Convention by making a derogation under article 15. It gave examples of derogations by Turkey and the United Kingdom in respect of internal conflicts, including Northern Ireland. Thus article 15 only applies to internal conflicts.

As we see it, the problem with Mr Singh’s submission under article 15 is that it proves too much. As just stated, if any inference is to be drawn from article 15, it must be that the reference to “lawful” acts of war necessarily assumes that there may be acts of war done by a member state which are not lawful and which therefore cannot form the basis for a lawful derogation under article 15. Yet, as indicated above, Mr Singh disavows (in our view correctly) the submission that sending troops to fight an unlawful war is of itself a breach of article 2. It is impossible to spell out of article 15.2 an obligation that article 2 requires a member state to take reasonable steps to be satisfied that the war is lawful.

Whatever the precise purpose of article 15, it does not in our judgment widen the scope of either the substantive or the procedural obligations under article 2 and is not sufficient to displace the reasoning which has led us to the conclusion that there is not here an arguable case of a breach of article 2.

The same is true of Mr Singh’s reliance upon article 1 of protocol 1, which provides, so far as relevant:

Mr Singh points to the expression “general principles of international law”. However, it was held by the European Court in James v United Kingdom (1986) 8 EHRR 123, after considering the travaux préparatoires, that article 1 did not apply to nationals of the relevant member state but only to foreign nationals, and that the obligation under international law to pay compensation for expropriation of property was an obligation only to non-nationals. In any event, we do not think that the limited reference to international law in the specific context of property rights in article 1 of the first protocol suggests that the principles of international law were intended to form part of the Convention more widely. That reference is not, in our judgment, a sufficient basis to import an implied obligation into article 2 of the kind which Mr Singh urges upon the court.

We were referred to the decision of Kearns J in Horgan v Ireland [2003] 2 IR 468, in which Mr Horgan, who is an Irish citizen, sought declaratory relief relating to the use of Shannon Airport as a stop over for United States aircraft engaged in a military attack against Iraq. The application failed. The judge approved the principles in the CND case as correct and held that Article 28 of the Irish Constitution did not assist the applicant. Although the case did not involve the Convention, Kearns J’s general approach was consistent with the approach we have adopted in the instant case: see eg pages 501 to 503 and 514 to 515.

We were also referred to a decision of the Hague District Court in Holland, case no KG 03/331, on 31 March 2003, in which a number of residents of Iraq sought a declaration against the Prime Minister of Holland that he was jointly responsible for the military action against Iraq on the basis that it was unlawful and that he had given political, military and diplomatic support to it. The claim failed for want of jurisdiction, in part at least on the basis that the court had no jurisdiction to adjudicate upon political matters. It is, however, correct to say that, like Horgan, it was not concerned with the Convention.

By way of contrast, we were referred by Mr Singh to a decision of the German Federal Administrative Court in Germany, dated 21 June 2005, ref TDG N 1 VL 24/03. A German soldier had refused to carry out two orders to collaborate on the development of a military software programme on the ground that he could not reconcile it with his conscience to follow orders that were supportive of the war in Iraq. He relied upon the fundamental right to freedom of conscience in article 4 of the German Constitution. His case was that the invasion of Iraq was unlawful under international law because there had been no second Security Council resolution and there was no right of self-defence under Article 51 of the UN Charter. His case was upheld. Mr Singh relies upon it as an example of a court relying upon principles of international law in adjudicating upon a domestic right. It was not, however, a decision on the Convention.

We refer to Horgan, the Dutch case and the German case cases because some reliance was placed upon them on either side but, as just stated, none of them was a decision made under the Convention. In these circumstances they afford very little assistance in identifying the nature of the obligations of member states under article 2 of the Convention.

In addition, we should refer to Bertrand Russell Peace Foundation Ltd v United Kingdom (1978) 14 D&R 117, where the applicant asserted that its mail was confiscated by the Soviet authorities in Soviet territory. It complained that the United Kingdom was in breach of article 8 of the Convention on the ground that the United Kingdom had failed to secure its right to respect for its correspondence and that it was in breach of article 10 on the ground that it had failed to secure its right to impart information “regardless of frontiers”. The applicant asserted that the United Kingdom was obliged to uphold the Convention rights of persons such as itself within its jurisdiction by taking action by such means as making diplomatic representations and enquiries or taking legal action in the Soviet Union. In short, the applicant asserted that the United Kingdom should exercise its state right to intervene under international law. The Commission declared the application inadmissible on the basis that the applicant had no right under the Convention to the diplomatic and other action which it sought.

We recognise that there are areas in which the court will consider highly sensitive areas, as in McCann and the A cases and as in cases in which it is considering whether there is a real risk of torture or persecution if a decision is made to deport a particular individual. However, as Laws LJ put it in Marchiori, each context is different and, in the present context, the question is whether to imply an obligation into article 2 of the Convention of the kind advanced by Mr Singh.

For the reasons we have given, we have reached the conclusion that the answer to that question is no. We have concluded that, while the principles of international law do play a part in the construction of the Convention, they are not imported wholesale into the Convention, which is concerned only with domestic rights. As we see it, the Convention respects the general principle of the separation of powers between the executive and the courts, including the principle that there remain some areas which are essentially matters for the executive and not the courts. We are not persuaded that the United Kingdom is arguably in breach of article 2 of the Convention.

It follows from that conclusion that the application must be dismissed and that it is not necessary for us to discuss in any detail or express any concluded view on the many other interesting questions which were addressed in argument. However we say a word on four topics, one of which was not addressed in argument. They are the extent of the obligation under article 2, causation, jurisdiction and the correct approach if we had taken a different view.

As stated earlier it was common ground during the argument that there is no obligation on a member state to carry out an investigation under article 2 unless it is at least arguably in breach of the substantive obligation in article 2. Following the decision of Richards J in R (Goodson) v Bedfordshire and Luton Coroner [2004] EWHC 2931 (Admin), [2006] 1 WLR 432, this court held in Takoushis that that proposition is not correct. That was a case in which the deceased had been a patient in an NHS hospital. The court held (at [38]) that article 2 was engaged whenever a person dies in circumstances which give reasonable grounds for thinking that the death may have resulted from a wrongful act of one of its agents, as for example by negligence on the part of a member of staff at an NHS hospital. The court further held (at [98] to [99] and [105] to [109]) that in such circumstances the state owes a duty to carry out an appropriate investigation under article 2 even if it was not arguably in breach of its substantive obligation in article 2.

It thus appears, at any rate as the case law stands at present, that a state may be under an obligation under article 2 to carry out an appropriate investigation even if not arguably in breach of the substantive obligation in article 2. However, assuming that to be the case (contrary to the common ground between the parties), that does not affect the reasoning which has led us to conclude that the United Kingdom does not owe a duty to investigate the invasion question.

As indicated above, Mr Sumption submits that, even if there were a Convention obligation to investigate deaths occurring in the course of military operations overseas, the lawfulness of those operations as a matter of international law would be irrelevant to such an investigation, as a matter of causation. The applicants’ case is that, but for the failure of the United Kingdom, in breach of its obligation under article 2 of the Convention, to take reasonable steps to ensure that the invasion of Iraq was lawful, neither Trooper Clarke nor Fusilier Gentle would have lost his life because the government would not have sent them to Iraq and/or the CDS would not have permitted the armed forces to go to Iraq. Mr Sumption submits that that is far too remote. He submits that in the modern law questions of causation are normally to be determined by reference to the scope of the duty said to have been broken and the mischief to which it is directed. He further submits that the alleged unlawfulness of the operations in Iraq is not part of the explanation of the soldiers’ deaths, or even a background circumstance.

In the light of the conclusion expressed earlier that the United Kingdom is not bound to carry out an investigation under article 2, these issues do not fall for decision in this appeal. We will not therefore attempt to decide them. We will only say that we are not at present persuaded that, if the other problems were overcome, it would be right to reject the application on the grounds of causation. It appears to us to be at least arguable that Mr Sumption’s submissions approach issues of causation in too restricted a manner, perhaps because of our common law tradition. The European Court might take a broader view.

Mr Singh accepts that in order to engage article 2, there must have been a death (or a near death) and that the alleged breach of the state’s obligation must have occurred within the territory of the relevant state. His submission is that the breach occurred within the United Kingdom because the forces were either sent to Iraq from the United Kingdom or from a military base overseas which for this purpose must be treated as part of the United Kingdom. He relies upon Soering v United Kingdom (1989) 11 EHRR 439, where the European Court accepted the applicant’s case that, if he were extradited to the United States to face a charge of capital murder and if he were convicted and executed, there would be a violation of article 3 of the Convention. Mr Singh submits that the same reasoning applies here, so that it is the sending of the troops to Iraq which amounts to a breach of article 2. Mr Sumption seeks to distinguish the two cases and submits that, since both Trooper Clarke and Fusilier Gentle lost their lives outside the jurisdiction, there can be no arguable breach of article 2 because the Convention applies only to deaths within the jurisdiction.

The submissions on either side were extensive. Again, it is not necessary for us to determine the issues between the parties. We will not therefore further lengthen this judgment by trying to do so. We only say that there seems to us to be much to be said for the conclusion that the principles in Soering should apply to article 2 as they do to article 3.

It struck us during the argument that, if we held that the United Kingdom was bound (contrary to our view) to order a further investigation into the invasion question, it was far from obvious that the correct course would be to order the kind of independent inquiry which the applicants apparently have in mind. If, contrary to our view, it were held that the invasion question could be the subject of an investigation as to whether reasonable steps were taken to establish the legal position under international law, the most sensible approach would in our view be to allow the applicants to seek an appropriate declaration from the court and leave a judge to decide the question of law and whether they were entitled to a declaration or not. The decision and reasoning of a judge on the question would, as it seems to us, probably satisfy the purposes of such an inquiry, in so far as they include learning lessons for the future. It is not, however, necessary to express a final conclusion on this question, since much might depend upon the basis upon which it was held to be necessary to conduct a further investigation under article 2.

We have every sympathy for the applicants. The deaths of their sons must be unbearable. However, the deaths will be investigated in detail. The only question which will not be investigated is the invasion question, namely whether the government took reasonable steps to be satisfied that the invasion of Iraq was lawful under the principles of public international law. We have reached the conclusion that the United Kingdom is not obliged to set up an independent inquiry into that question under article 2 of the Convention. Such an inquiry would inevitably involve, not only questions of international law, but also questions of policy, which are essentially matters for the executive and not the courts. The Convention does not contemplate that an inquiry set up pursuant to article 2 will consider either questions of international law or questions of policy. In all these circumstances we must dismiss the applications.