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

Facts

The claimants were the mothers of two British servicemen killed while serving in Iraq after the invasion of 2003. They asked the government to establish an independent inquiry into the circumstances in which the United Kingdom went to war, including the process by which it obtained legal advice on the lawfulness of the invasion. The government refused, and the claimants sought judicial review of that refusal.

History

The claim failed at first instance, and the claimants appealed to the Court of Appeal.

Issue

Whether Article 2 of the Convention, read with the Human Rights Act 1998, imposed on the government a substantive duty to take reasonable steps to ensure that the deployment of troops to Iraq was lawful under international law, and consequently a procedural duty to hold an independent inquiry into whether that duty had been met.

Held

Appeal dismissed; the claim for an inquiry failed.

Ratio

• Article 2 does not impose on the state a duty to take reasonable care to ascertain that a decision to go to war is lawful in international law; since there is no such substantive obligation, there is no corresponding procedural obligation to hold an inquiry into the legality of the decision.

Key reasoning

• The obligations under Article 2 are directed at protecting life within the state's jurisdiction against identifiable risks; the lawfulness of the use of force in international relations is not the kind of question to which Article 2 is addressed.
• Recognising such a duty would require the domestic court to examine and decide the legality of the war under international law and the conduct of foreign and defence policy, matters which the courts have treated as unsuitable for adjudication.
• The investigative duty under Article 2 is parasitic on a substantive duty; without the latter there is nothing for an inquiry to vindicate.

Where it fits in the module

In the topic on the Crown and the royal prerogative, Gentle illustrates the persistence of non-justiciability for decisions on war and the deployment of the armed forces, which Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374 treated as excluded from review. It shows that even the Human Rights Act does not open such decisions to scrutiny, and invites comparison with later decisions such as Smith v Ministry of Defence [2013] UKSC 41 and R (Miller) v Prime Minister [2019] UKSC 41, which show the courts willing to examine other aspects of prerogative and military decision-making.

Criticisms

• The decision leaves the most serious exercise of executive power, sending troops to war, without legal accountability, relying entirely on political mechanisms whose adequacy was itself in question.
• The court's reasoning blends a question of the scope of Article 2 with a concern about justiciability, and it is unclear whether the claim failed because Article 2 does not reach the matter or because courts will not decide questions of international law.
• Defenders argue that the decision rightly recognises the constitutional and institutional limits of courts: legality under international law of a war, and the quality of legal advice to ministers, are matters for Parliament and public inquiry rather than adjudication.