A committee of nine Law Lords has unanimously rejected this claim that the article 2 Convention right to life of soldiers killed in Iraq requires the government to hold an inquiry into how the UK came to invade, how the Attorney General came to advise that the war was lawful, and so on. Article 2, they all agree, imposes no duty on ministers not to send soldiers to fight an unlawful war: it’s the UN Charter, not the ECHR, that deals with the lawfulness of war.
Rabinder Singh’s argument was a clever one, bolting together aspects of article 2 case law – the need for inquiries into deaths caused by state action, the need for the state to take steps to avoid imminent risks to life – and linking them to a factual argument that the government’s alleged failure properly to consider the lawfulness of the war was the ultimate cause of soldiers’ deaths. But it was not a legally sound argument, and was bound to fail. The article 2 duty to inquire into the cause and circumstances of death in war will be satisfied by the new, broader Middleton type of inquest that must now be held into the surrounding circumstances; it does not require a wide-ranging inquiry into government policy-making separate from individual deaths.
While agreeing with the others, Lady Hale wears her sympathies on her ermine sleeve: she clearly is very sympathetic to the applicants, even to the point of expressing the wish that the ECHR did outlaw unlawful war: perhaps she should add this to the short list of additional provisions she recently told the Joint Committee on Human Rights (see from question 201) might be put into a “British Bill of Rights”.
A final and more nerdish point: I think Lady Hale’s approach to what UK courts can do in applying Convention rights (see paragraph 56) is interesting, but I do wonder about it. Why should they be limited to what the Strasbourg court might foreseeably do? I’d prefer a more textual approach myself, analysing the limits of interpretation of the Convention itself, to an institutional, second-guessing approach like this.
IF we had a true Parliament instead of a House of Muppets controlled by the executive then we would have the inquiry. Under our constitution it is supposed to be Parliament which holds the executive to account butas Lord Denning once said – “Legal theory does not march hand in hand with political reality” – [Attorney-General v Blackburn 1971]. The reality is that the executive controls Parliament.