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|Judgments - R (on the application of Gentle (FC) and another (FC)) (Appellants) v The Prime Minister and others (Respondents)
HOUSE OF LORDS
 UKHL 20
on appeal from:  EWCA Civ 1689
OF THE LORDS OF APPEAL
FOR JUDGMENT IN THE CAUSE
R (on the application of Gentle (FC) and another (FC)) (Appellants) v The Prime Minister and others (Respondents)
Lord Bingham of Cornhill
Lord Hope of Craighead
Lord Scott of Foscote
Lord Rodger of Earlsferry
Baroness Hale of Richmond
Lord Brown of Eaton-under-Heywood
Rabinder Singh QC
Michael Fordham QC
(Public Interest Lawyers)
Jonathan Sumption QC
Philip Sales QC
(Instructed by the Treasury Solicitors)
11-13 FEBRUARY 2008
WEDNESDAY 9 APRIL 2008
HOUSE OF LORDS
OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT
IN THE CAUSE
R (on the application of Gentle (FC) and another (FC)) (Appellants) v The Prime Minister and others (Respondents)
 UKHL 20
LORD BINGHAM OF CORNHILL
1. The appellants are the mothers of two young men, both aged 19, who lost their lives while serving in the British army in Iraq. Fusilier Gordon Campbell Gentle was serving with the 1st Battalion The Royal Highland Fusiliers when he was killed by a roadside bomb on 28 June 2004. Trooper David Jeffrey Clarke was serving with the Queens Royal Lancers when he was killed by friendly fire on 25 March 2003. These deaths have been fully investigated at duly-constituted inquests conducted in the United Kingdom, and there are no outstanding questions about when, where and in what circumstances they respectively died.
2. The appellants contend that by virtue of sections 1 and 2 of the Human Rights Act 1998 and article 2 of the European Convention on Human Rights they have an enforceable legal right sounding in domestic law to require Her Majestys Government to establish an independent public enquiry 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 this right is a duty binding on the Government to establish such an enquiry. It is a duty owed, the appellants say, to all members of our forces deployed to Iraq and their families, but would presumably be owed also to all military personnel liable to be deployed to Iraq (whether in the regular or the Territorial Army) and their families. In these proceedings the appellants do not ask the House to decide whether such an enquiry would be desirable in the public interest, a question inappropriate for consideration by the House in its judicial capacity, but only whether they have a right to require such an enquiry to be held. Nor do they invite the House to consider whether the use of armed force by the United Kingdom in Iraq in 2003 was lawful or unlawful in international law. That question would also fall outside the remit of the public independent enquiry the appellants claim, which 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. This gives the proceedings an appearance of unreality since, relying on a number of familiar documents now in the public domain, the appellants underlying complaint (which they would have wished to advance) is that the UK went to war to achieve an unlawful aim, without proper United Nations sanction and on the strength of legal advice which was adverse or equivocal until very shortly before the invasion. The correctness of this complaint is not, I repeat, a matter which falls for decision in this appeal.
3. The thrust of the appellants case, put very simply, is this. Article 2 of the Convention imposes a duty on member states to protect life. This duty extends to the lives of soldiers. Armed conflict exposes 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 this before invading Iraq in March 2003, it would arguably not have invaded. Had it not invaded, Fusilier Gentle and Trooper Clarke would not have been killed.
4. The bedrock of the appellants argument is article 2 of the Convention which, so far as relevant, provides: Everyones right to life shall be protected by law". This apparently simple provision has been the subject of much judicial exegesis, the effect of which the House summarised in R(Middleton) v West Somerset Coroner  UKHL 10,  2 AC 182, para 2:
The European Court of Human Rights has repeatedly interpreted article 2 of the European Convention as imposing on member states substantive obligations not to take life without justification and also to establish a framework of laws, precautions, procedures and means of enforcement which will, to the greatest extent reasonably practicable, protect life. See, for example, LCB v United Kingdom (1998) 27 EHRR 212, para 36; Osman v United Kingdom (1998) 29 EHRR 245; Powell v United Kingdom Reports of Judgments and Decisions 2000-V, p 397; Keenan v United Kingdom (2001) 33 EHRR 913, paras 88-90; Edwards v United Kingdom (2002) 35 EHRR 487, para 54; Calvelli and Ciglio v Italy Reports of Judgments and Decisions 2002-I, p I; Öneryildiz v Turkey (Application No 48939/99) (unreported) 18 June 2002.
There have been further decisions since that summary was given, but it was not suggested in argument that they made it inaccurate or in need of modification.
5. This substantive obligation derived from article 2 has been supplemented by a procedural obligation, the effect of which the House also summarised in Middleton, para 3:
The European Court has also interpreted article 2 as imposing on member states a procedural obligation to initiate an effective public investigation by an independent official body into any death occurring in circumstances in which it appears that one or other of the foregoing substantive obligations has been, or may have been, violated and it appears that agents of the state are, or may be, in some way implicated. See, for example, Taylor v United Kingdom (1994) 79-A DR 127, 137; McCann v United Kingdom (1995) 21 EHRR 97, para 161; Powell v United Kingdom Reports of Judgments and Decisions 2000-V, p 397; Salman v Turkey (2000) 34 EHRR 425, para 104; Sieminska v Poland (Application No 37602/97) (unreported) 29 March 2001; Jordan v United Kingdom (2001) 37 EHRR 52, para 105; Edwards v United Kingdom, 35 EHRR 487, para 69; Öneryildiz v Turkey, 18 June 2002, paras 90-91; Mastromatteo v Italy (Application No 37703/97) (unreported) 24 October 2002.
This procedural duty does not derive from the express terms of article 2, but was no doubt implied in order to make sure that the substantive right was effective in practice. There have again been further decisions on the procedural obligation, but it is not suggested that any modification of the summary is called for. In Middleton the House was required to consider whether the rules and authorities formerly governing inquests permitted the coroner to conduct an enquiry which fulfilled the UKs procedural obligation under article 2. It held that in some cases they did not. In such cases, the House ruled, the question how, when and where the deceased came by his death should be understood to mean when, where and by what means and in what circumstances the deceased came by his death": see para 35. In later Strasbourg authorities this approach has not been criticised as failing to meet the UKs obligation under article 2.
6. It is the procedural obligation under article 2 that the appellants seek to invoke in this case. But it is clear (see para 3 of Middleton, quoted above, Jordan v United Kingdom (2001) 37 EHRR 52, para 105; Edwards v United Kingdom (2002) 35 EHRR 487, para 69; In re McKerr  UKHL 12,  1 WLR 807, paras 18-22) that the procedural obligation under article 2 is parasitic upon the existence of the substantive right, and cannot exist independently. Thus to make good their procedural right to the enquiry they seek the appellants must show, as they accept, at least an arguable case that the substantive right arises on the facts of these cases. Unless they can do that, their claim must fail. Despite the careful and detailed submissions of Mr Rabinder Singh QC on their behalf, I am driven to conclude that they cannot establish such a right.
7. As the summary in para 2 of Middleton makes clear, article 2 not only prohibits the unjustified taking of life by the state and its agents, but also requires a framework of laws, precautions, procedures and means of enforcement which will, to the greatest extent reasonably practicable, protect life. In either case the question whether the state unjustifiably took life or failed to protect it will arise in respect of a particular deceased person, as it did at the inquests pertaining to Fusilier Gentle and Trooper Clarke. There is in my opinion no warrant for reading article 2 as a generalised provision protective of life, irrespective of any specific death or threat. In the present case the appellants, tragically, lost their sons. But the right and the duty they seek to assert do not depend on their sons deaths. If they exist at all they would have arisen before either young man was killed and would exist had both young men survived the conflict.
8. It may be significant that article 2 has 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 have made that decision over the past half century and despite the fact that such a decision almost inevitably exposes military personnel to the risk of fatalities. There are, I think, three main reasons for this:
(1) The lawfulness of military action has 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 Harbour, is likely to minimise the risk to the aggressor. In this case, as Mr Sumption QC for the respondents pointed out, Fusilier Gentle died after Security Council Resolution 1546 had legitimated British military action in Iraq, so that such action was not by then unlawful even if it had earlier been so.
(2) The draftsmen of the European Convention cannot, in my opinion, have envisaged that it could provide a suitable framework or machinery for resolving questions about the resort to war. They will have been vividly aware of the United Nations Charter, adopted not many years earlier, and will have recognised it 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. It must (further) have been obvious that an enquiry such as the appellants claim would be drawn into consideration of issues which judicial tribunals have traditionally been very reluctant to entertain because they recognise their limitations as suitable bodies to resolve them. This is not to say that if the appellants have a legal right the courts cannot decide it. The respondents accept that if the appellants have a legal right it is justiciable in the courts, and they do not seek to demarcate areas into which the courts may not intrude. They do, however, say, in my view rightly, that in deciding whether a right exists it is relevant to consider what exercise of the right would entail. Thus the restraint traditionally shown by the courts in ruling on what has been called high policy - peace and war, the making of treaties, the conduct of foreign relations - does tend to militate against the existence of the right: R v Jones (Margaret)  UKHL 16,  1 AC 136, paras 30, 65-67. This consideration is fortified by the reflection that war is very often made by several states acting as allies: but a litigant would be required to exhaust his domestic remedies before national courts in which judgments would be made about the conduct of states not before the court, and even if the matter were to reach the European Court of Human Rights there could be no review of the conduct of non-member states who might nonetheless be covered by any decision.
(3) The obligation of member states under article 1 of the Convention is 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 is territorial: the rights and freedoms are ordinarily to be secured to those within the borders of the state and not outside. Here, the deaths of Fusilier Gentle and Trooper Clarke occurred in Iraq and although they were subject to the authority of the respondents they were clearly not within the jurisdiction of the UK as that expression in the Convention has been interpreted (R (Al-Skeini) v Secretary of State for Defence (The Redress Trust Intervening)  UKHL 26,  1 AC 153, paras 79, 129). The appellants seek to overcome that problem, in reliance on authorities such as Soering v United Kingdom (1989) 11 EHRR 439, by stressing that their complaint relates to the decision-making process (or lack of it) which occurred here, even though the ill-effects were felt abroad. There is, I think, an obvious distinction between the present case and Soering, and such later cases as Chahal v United Kingdom (1996) 23 EHRR 413 and D v United Kingdom (1997) 24 EHRR 423, in each of which action relating to an individual in the UK was likely to have an immediate and direct impact on that individual elsewhere. But I think there is a more fundamental objection: that the appellants argument, necessary to meet the objection of extra-territoriality, highlights the remoteness of their complaints from the true purview of article 2.
9. Even if, contrary to my conclusion, the appellants were able to establish an arguable substantive right under article 2, they would still fail to establish a right to a wide-ranging enquiry such as they seek. Nothing in the Strasbourg case-law on article 2 appears to contemplate such an enquiry: Jordan v United Kingdom, above, para 128; Bubbins v United Kingdom (2005) 41 EHRR 458, para 153; Taylor v United Kingdom (1994) 79-A DR 127, 137; McShane v United Kingdom (2002) 35 EHRR 593, para 122; Banks v United Kingdom (Appn no 21387/05, 6 February 2007, unreported), pp 12-13; McBride v United Kingdom (2006) 43 EHRR SE 102, para 1, pp 109-110. In Scholes v Secretary of State for the Home Department  EWCA Civ 1343, para 67, Pill LJ threw some doubt on the current applicability of the ruling in Taylor, but I do not think the authorities justify his doubt and Arden LJ, in paras 82-83, applied what I respectfully think is the correct approach. The procedural right under discussion is, as pointed out in para 5 above, a product of implication, and while the implication of terms may be both necessary and desirable it is a task to be carried out by any court, particularly a national court, with extreme caution. This is because states ordinarily seek to express the terms on which they agree in a convention such as this; terms which are not expressed may have been deliberately omitted; terms, once implied, are binding on all member states, and may be terms they would not have been willing to accept: Brown v Stott  1 AC 681, 703. I find it impossible to conceive that the proud sovereign states of Europe could ever have contemplated binding themselves legally to establish an independent public enquiry into the process by which a decision might have been made to commit the states armed forces to war.
10. Both the judge (Collins J,  EWHC 3119 (Admin) and the Court of Appeal (Sir Anthony Clarke MR, Sir Igor Judge P and Dyson LJ,  EWCA Civ 1689,  QB 689) dismissed the appellants claim, despite the sympathy they felt for the appellants personally. Although my own reasons are simpler, and do little justice to the arguments of counsel, I reach the same conclusion. I would dismiss the appeal and invite written submissions on costs within 14 days.
11. Trooper David Clarke and Fusilier Gordon Gentle were tragically killed in Iraq. Inquests have been held into the circumstances in which they died. The question in this appeal is whether the state has a duty under article 2 of the European Convention (right to life) to conduct a further and wider inquiry. It is well established that article 2 places upon the state in certain circumstances a duty to take reasonable steps to safeguard the lives of citizens and, if there has arguably been a breach of that duty, a procedural obligation to conduct an independent inquiry into whether it has been breached or not.
12. Mr Rabinder Singh QC, who appeared for the mothers of the two dead soldiers, said there had arguably been a breach of the states duty under article 2 which ought to be investigated. That breach was a failure to take proper steps to ascertain whether participation in the invasion of Iraq would comply with international law. The Attorney-General had advised the government that the invasion would be authorised by UN Security Council resolution 1441, but Mr Singh said his advice had been given on inadequate grounds.
13. Mr Singh did not submit that article 2 created a duty on the state not to participate in a war which was not authorised by the United Nations charter. It would, in my opinion, have been a hopeless submission. First, it is inconceivable that article 2, in creating duties which the state undertook to accord to its citizens in domestic law, was intending that it should incorporate by reference its duties under the United Nations Charter or any other duties which operated exclusively at the level of international law, governing relations between states. Secondly, article 2 is concerned with dangers to life and the question of whether a war is authorised by a Security Council resolution has nothing to do with the extent to which participation is dangerous. Trooper Clarke was killed by a shell fired by one of our own tanks on 25 March 2003, soon after the war, began but Fusilier Gentle was killed by a roadside bomb on 28 June 2004, long after Security Council resolutions had recognised the legality of the occupying forces and the occupation had become much more dangerous.
14. Mr Singh therefore fell back on a claim that there was in the circumstances an independent duty, created by article 2, to take reasonable steps to investigate whether the invasion would, as a matter of international law, be lawful or not. What could give rise to such a duty, if the article created no duty to not embark upon an unlawful war? Mr Singh said it was because, if proper investigation had taken place, there was a good chance that the UK would not have taken part in the war or occupation and the soldiers would not have been killed.
15. My Lords, this is a for want of a nail argument which I cannot accept. There are all kinds of things which, if the Government had acted differently, might have resulted in the UK not taking part in the war. A different assessment of our diplomatic interests or financial resources might have led to a different conclusion. Did the Government have a duty under article 2 to use, in Mr Singhs phrase, due diligence in the investigation of all these matters? Of course not. The question is not whether a better inquiry might have led to a different decision but whether article 2 created a legal duty to the soldiers to undertake such an inquiry.
16. Unless article 2 creates a duty not to go to war contrary to the United Nations Charter (a proposition for which, as I have said, Mr Singh does not contend) I cannot see how there can be an independent duty to use reasonable care to ascertain whether the war would be contrary to the Charter or not. What would be the purpose of such a duty if the Government owed no duty under article 2 to comply with the Charter? Of course it is desirable for all kinds of reasons that the Government should not act contrary to international law and that it should take reasonable steps to discover whether it is about to do so. But not, as it seems to me, to comply with article 2. For those reasons, I would dismiss this appeal. I also agree with the reasons given by my noble and learned friend Lord Bingham of Cornhill, which I have had the privilege of reading in draft.
LORD HOPE OF CRAIGHEAD
17. It is a hard thing for a court to say to the mothers of two young soldiers who lost their lives in the service of their country that it can do nothing for them in their campaign to have the circumstances that led up to these tragedies investigated. Had there been an issue which was capable of being reviewed by the courts - even arguably so - its duty would have been clear, and this application would have been successful. The problem lies in the nature of the issue which they wish to raise. It simply is not possible to link it to the only legal base on which the application is founded.
18. The first sentence of article 2(1) of the European Convention on Human Rights declares that everyones right to life shall be protected by law. But this is not an absolute guarantee that nobody will be exposed by the state to situations where their life is in danger, whatever the circumstances. Those who serve in the emergency services risk their lives on our behalf to protect the lives of others. Those who serve in the armed forces do this in the knowledge that they may be called upon to risk their lives in the defence of their country or its legitimate interests at home or overseas. In Engel v The Netherlands (No 1) (1976) 1 EHRR 647, para 54, the European Court said that, when interpreting and applying the rules of the Convention, the court must bear in mind the particular characteristics of military life and its effects on the situation of individual members of the armed forces. This is not to say that those who are employed in the emergency services and the military are entirely outside its protection. That would be contrary to the declaration in article 1 that the rights and freedoms shall be secured to everyone within the jurisdiction of the contracting parties. In Sen v Turkey, 8 July 2003, application no 45824/99, p 8, the court observed that the Convention applies in principle to members of the armed forces and not only to civilians. But the extent of that protection must take account of the characteristics of military life, the nature of the activities that they are required to perform and of the risks that they give rise to.
19. Engel v The Netherlands was a case about the preservation of military discipline, as was Sen v Turkey and Grigoriades v Greece (1999) 27 EHRR 464 where the court said in para 45 that the proper functioning of an army is hardly imaginable without legal rules designed to prevent servicemen from undermining military discipline. But the statement in Engel was widely expressed and it is of general application. The proper functioning of an army in a modern democracy includes requiring those who serve in it to undertake the operations for which they have been recruited, trained and equipped, some of which are inherently dangerous. The jurisprudence which has developed from the decision in Soering v United Kingdom (1989) 11 EHRR 439 about decisions taken in this country to send people abroad to places where they face a real risk of being subjected to torture or to inhuman or degrading treatment or punishment does not apply. The guarantee in the first sentence of article 2(1) is not violated simply by deploying servicemen and women on active service overseas as part of an organised military force which is properly equipped and capable of defending itself, even though the risk of their being killed is inherent in what they are being asked to do.
20. It is, of course, desirable that decisions to use the armed forces in this way should be taken on the basis of well researched and accurate information and careful and thorough consideration by governments. That is especially so when the legality of the operation may be in issue. In a recent debate in the House of Lords on War Powers and Treaties Lord Guthrie of Craigiebank, a former Chief of the Defence Staff, said that the services want to know that the country is behind them before they are committed, that they are supported by Parliament and that what they are being asked to do is legal: Hansard (HL Debates) vol 698 (31 January 2008), col 747. It is to the issue of legality that Mr Singh QC has directed attention in this case. What he seeks is an inquiry as to the circumstances in which the Attorney General came to state that the use of force for the invasion of Iraq would be lawful. But he accepts that he must first show that the respondents were arguably in breach of article 2(1) by failing to ensure with due diligence that the operation was lawful under international law.