Human rights

• Pages: 62-64

Page 62

The Claimants here, Rose Gentle and Beverley Clarke, are the mothers of two young men, both aged 19, who lost their lives while serving in the British army in Iraq. The Defendants are the Prime Minister, the Secretary of State for Defense and the Attorney General.

Fusilier Gordon Campbell Gentle was stationed with the 1st Battalion The Royal Highland Fusiliers when a roadside bomb killed him in June 2004. Trooper David Jeff rey Clarke was serving with the Queen's Royal Lancers when he died from "friendly fi re" in March 2003. Official inquests in the U.K. have fully looked into these deaths, leaving no outstanding questions about when, where and in what circumstances these two deaths came to pass.

As to the law, the Claimants contend that, by virtue of sections 1 and 2 of the U.K.'s Human Rights Act of 1998 and Article 2 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (the Convention) [November 4, 1950, 312 U.N.T.S. 221, as amended], they have an enforceable right under domestic law to require Her Majesty's Government to make an independent public inquiry into all the circumstances surrounding the invasion of Iraq by British forces in 2003; it would specifi cally include the steps taken by the Government to obtain timely expert advice on the legality of the invasion.

As an inferential corollary of this right, they say, is a duty binding on the Government to set up such an inquiry. It is a duty owed, the Claimants contend, to all members of our armed forces deployed to Iraq and their families. Presumably, the government owed a duty also to all military personnel liable to be deployed to Iraq and their families.

In these proceedings, the Claimants do not ask the House [of Lords] to decide whether such an inquiry would be desirable in the public interest (a question not appropriate for the House to consider in its judicial capacity), but only whether they have a right to require the government to conduct such an inquiry. Nor do they invite the House to consider whether the U.K.'s use of armed force in Iraq in 2003 was lawful or unlawful under international law. That question would also lie outside the scope of the public and independent inquiry the Claimants seek. They merely wish the government to explain the process by which the Government obtained legal advice and not to the correctness of the advice it got or should have gotten.

There is an appearance of unreality here. Relying on a number of familiar documents now in the public domain, the Claimants' real complaint (which they would have wished to advance) is that the U.K. went to war for an unlawful reason, without...