R (Gentle) v Foreign Secretary

R (Gentle) v Foreign Secretary [2008] UKHL 20, [2008] 1 AC 1346

JUDICIAL REVIEW – EXECUTIVE DISCRETION

Facts

The claimants were the mothers of two British servicemen killed serving in Iraq. Inquests were to be held into the circumstances surrounding their deaths, but it had been determined by the defendant Foreign Secretary, that this would not include a consideration of whether the government had taken reasonable steps to ensure that the invasion of Iraq was compliant with international law in the first place. The claimants sought a judicial review of the defendant’s decision in this regard.

Issues

The issue at hand was whether Article 2 of the European Convention on Human Rights (which provides for a right to life) incorporated into UK law by the Human Rights Act 1998, gave rise to an obligation to take reasonable steps to ensure lawfulness, and to initiate a public investigation into the invasion question of whether it was, at least arguably, in breach of this obligation.

Decision/Outcome

The court held, dismissing the claim, that the question of whether the invasion was in fact lawful was not justiciable. In the absence of the Human Rights Act 1998 and the European Convention, the question of whether reasonable steps had been taken to ensure lawfulness was also not justiciable; therefore there was no basis on which the court could order an inquiry. The Convention was concerned with domestic rights, and the principles of international law were not imported wholesale into it; it preserved respect for the general principle that there remained some matters for the executive, rather than the courts.

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