R (Gentle) v Prime Minister [2008] UKHL 20

Key points

  • Article 2 of the European Convention on Human Rights (ECHR) did not require Member States to ensure that their armed forces were not sent on unlawful operations per international law principles
  • The decision to enter a war, exercised under prerogative, is in principle susceptible to review under the Human Rights Act 1998

Facts

  • The appellants, Rose Gentle and Beverly Clarke, were among six applicants requesting an independent inquiry into the circumstances of the decision to invade Iraq in 2003. Their application was refused in 2005
  • Gentle and Clarke seek judicial review of the refusal of the Government to conduct the independent inquiry by reason of Art.2 ECHR (right to life)
  • The appellants submitted that the United Kingdom was in breach of Art.2 for sending armed forces to Iraq without taking reasonable steps to satisfy that it was lawful to do so under public international law principles

Held (House of Lords)

  • Application refused
  • Art. 2 did not impose any obligation on the Government to take reasonable care to ensure that its armed forces would not be sent on unlawful operations under international law

Lord Bingham

Substantive rights under Art.2

  • Art.2 has not been significant in Member States decisions to send armed forces to operations that had a risk of fatality.: [8]
  • “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…”: [9]

Lord Hoffmann

Duty imposed by Art.2

  • “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.”: [16]

Baroness Hale of Richmond

Justiciability issue

  • “In my regretful view, therefore, the appeal fails at the first hurdle. It is not a breach of the substantive duty in article 2 to send the troops to fight in an unlawful war. Hence the article 2 duty to investigate does not arise. But had it been otherwise, I would have been inclined to accept the other planks in the appellants’ argument. As I understand it, it is now common ground that if a Convention right requires the court to examine and adjudicate upon matters which were previously regarded as non-justiciable, then adjudicate it must.”: [60]

Commentary

“The apparent strengthening of judicial checks on core prerogative by removal of the GCHQ ring-fencing of high policy areas has had minimal impact in practical terms; this is because the underlying dynamic that English courts cannot and will not effectively check war and foreign affairs prerogative decisions remains firmly intact.” : Rebecca Moosavian, ‘Judges and high prerogative: the enduring influence of expertise and legal purity,’ P.L. 2012, Oct, 724-748, 747