UK House of Lords Considers Scope and Application of the Right to Life

Gentle, R (on the application of) & Anor v The Prime Minister & Anor [2008] UKHL 20 (9 April 2008) In a judgment handed down on 9 April 2008, the UK House of Lords held that the right to life protections under art 2 of the European Convention on Human Rights did not impose a duty on the UK Government to hold an independent inquiry into the legality and decision-making process behind the 2003 invasion of Iraq.

They did, however, confirm that the right to life imposes both substantive and procedural obligations on states, including obligations to establish a system of laws, precautions, procedures and enforcement mechanisms to protect life, and to do what can reasonably be expected to avoid a real and immediate risk to life.

 

Facts

The appellants were the mothers of two soldiers killed on duty in Iraq.  Although inquests had been held into the circumstances of the soldiers’ deaths, the appellants sought a public inquiry into the legality of the UK Government’s decision to invade Iraq.  The applicants argued that the State’s duty to protect life under art 2 of the Convention and ss 1 and 2 of the Human Rights Act 1998 (UK) gave the appellants an enforceable right to have such an inquiry.

The appellants were unsuccessful at first instance and before the Court of Appeal because of a finding that the case was not justiciable (specifically, because questions of law and government policy in taking a country to war could not be separated, and courts were not a suitable forum to resolve the issue).  The appeal to the House of Lords was unanimously dismissed.

Decision

Lawfulness of the Invasion

Article 2 of the Convention provides that ‘everyone’s right to life shall be protected by law’.  The House of Lords confirmed that this imposes both substantive and procedural obligations on States.  The substantive obligations include:

  • not to take life without justification;
  • to establish a system of laws, precautions, procedures and enforcement mechanisms to protect life; and
  • to do what can reasonably be expected to avoid a real and immediate risk to life.

Article 2 also imposes a procedural obligation to conduct public investigations in cases where the substantive obligation may have been breached.  Lord Bingham observed that the procedural obligation is ‘parasitic upon the existence of the substantive right’.  For this reason, the appellants had to establish a breach of the substantive right by the UK Government under art 2 before the duty to hold an independent inquiry could arise.

Their Lordships held that the UK Government was not under a substantive obligation to take reasonable steps to ascertain the lawfulness of the invasion under international law.  Lord Bingham (with whom the majority of the Lords agreed) observed that the lawfulness of military action was not directly related to the risk to soldiers’ lives.  For example, an unlawful attack may have an element of surprise that would actually minimise the risk to an aggressor.

Further, the drafters of the Convention could not have imagined that it would be a suitable mechanism for resolving questions about a state’s resort to war.  The United Nations Charter was the more appropriate framework (rather than a treaty focused on the protection of individual human rights within the domestic legal system of member states).

Importantly, as noted by Baroness Hale, the lawfulness of the invasion under international law was squarely an issue between sovereign states, not as between individuals or between a state and an individual.  This issue was linked to the justiciability of the appellant’s claim.  The traditional restraint shown by the courts in entertaining issues of ‘high policy’ was seen as particularly pertinent to the existence of the appellants’ rights.

Although the appellants did not make submissions on this issue, several of the Lords emphasised that art 2 did not obligate a State not to participate in a war without UN authorisation.

Lord Hoffman observed that duties under art 2 do not incorporate by reference a State’s duties under the United Nations Charter (or any other international duties that govern relations between states at the international law level).  Lord Rodger observed that ‘there is nothing to suggest that the countries which agreed art 2 intended to go further and use it to impose on member states a fresh obligation to abide by art 2(4) of the United Nations Charter’.

Extraterritoriality

There was also a subsidiary point related to the Convention’s extra-territorial application.  Under art 1, the Convention applies to everyone within a member State’s jurisdiction.  Lord Bingham interpreted this as extending only as far as the borders of the State, subject to limited exceptions.  In his Lordship’s view, the appellants’ sons were not within the UK’s jurisdiction when deployed in Iraq.

Relevance to the Victorian Charter

The Victorian Charter contains a similar ‘right to life’ provision in section 9.  Section 32(2) of the Charter states that ‘[i]nternational law and the judgments of domestic, foreign and international courts and tribunals relevant to a human rights may be considered’ when interpreting a Charter provision.

This House of Lords decision confirms that the right to life imposes both substantive and procedural obligations on States, including obligations to establish a system of laws, precautions, procedures and enforcement mechanisms to protect life, and to do what can reasonably be expected to avoid a real and immediate risk to life.  It also highlights the need to imply a procedural obligation to conduct a public inquiry whenever the substantive obligation concerning the right to life may have been violated, and provides guidance to courts in instances when fulfilment of an obligation would require judgment on matters of government policy.

The decision is available at http://www.bailii.org/uk/cases/UKHL/2008/20.html.

Sheranga Fernando, Human Rights Law Group, Mallesons Stephen Jaques

MichelleBennettHuman Rights Law & Institutions