Who Lied - Who Died ?
The Court of Appeal has just given judgement - or rather, its initial judgement - in R v Prime Minister &c exp Gentle [2006] EWCA Civ 1078 (CA). This was on appeal from [2005] EWHC 3119 (Admin) before Mr Justice (Andrew) Collins.
The claim is for a mandatory order (of old, mandamus) for a public inquiry into the circumstances of the UK's military action in Iraq - 'invasion,' as the Court calls it. This sort of thing has become something of a growth industry - not the call for a public inquiry (which is just 'politics as usual') but the attempt to enforce it by Judicial Review.
What is not yet a growth industry is for this to get very far in the Law Courts, cases like R v Secretary of State for the Home Department exp Amin [2003] UKHL 51 (HL) - the truly appalling Feltham case, to which the court referred - notwithstanding. The logic is - as both courts said - straightforward enough in principle, that cases like Jordan v UK (2000) (ECHR) require a public inquiry wherever people die in circumstances implicating state agents - and Amin indicates that it needs not be the state's finger on the trigger. McCann v UK (1995) (ECHR) - 'Death on the Rock' - is perhaps closest of the UK cases to this.
To my amazement, the Court of Appeal have granted permission to appeal (really, to apply, as they point out) against the Judge's refusal. As they appreciate with quite sufficient clarity, the argument is one of international law rather than domestic law (ie politics by other means), and scarcely justiciable in a UK court. The Article 15 point about lawful military action is interesting, I admit, and I wish that I could be more confident in distinguishing the Bosnian / Iraqi civilian cases, but this seems to me to be quite clearly an attempt to carry on a political argument that was - for better or worse - lost in Parliament. Whatever the Lords Constitution Committee's objections to the War Prerogative, they weren't suggesting this.
To be fair, the Court make quite clear that they expect the claimants / applicants to lose. However, it seems guaranteed (check out today's top leader column in The Times) to exacerbate Government suspicion of the courts, and for all that they say that it is important, it is not important in domestic law but in domestic politics. The irony of Tony Blair being forced out by wall-to-wall coverage of the appeal should also worry people concerned about the courts' functions.
The claim is for a mandatory order (of old, mandamus) for a public inquiry into the circumstances of the UK's military action in Iraq - 'invasion,' as the Court calls it. This sort of thing has become something of a growth industry - not the call for a public inquiry (which is just 'politics as usual') but the attempt to enforce it by Judicial Review.
What is not yet a growth industry is for this to get very far in the Law Courts, cases like R v Secretary of State for the Home Department exp Amin [2003] UKHL 51 (HL) - the truly appalling Feltham case, to which the court referred - notwithstanding. The logic is - as both courts said - straightforward enough in principle, that cases like Jordan v UK (2000) (ECHR) require a public inquiry wherever people die in circumstances implicating state agents - and Amin indicates that it needs not be the state's finger on the trigger. McCann v UK (1995) (ECHR) - 'Death on the Rock' - is perhaps closest of the UK cases to this.
To my amazement, the Court of Appeal have granted permission to appeal (really, to apply, as they point out) against the Judge's refusal. As they appreciate with quite sufficient clarity, the argument is one of international law rather than domestic law (ie politics by other means), and scarcely justiciable in a UK court. The Article 15 point about lawful military action is interesting, I admit, and I wish that I could be more confident in distinguishing the Bosnian / Iraqi civilian cases, but this seems to me to be quite clearly an attempt to carry on a political argument that was - for better or worse - lost in Parliament. Whatever the Lords Constitution Committee's objections to the War Prerogative, they weren't suggesting this.
To be fair, the Court make quite clear that they expect the claimants / applicants to lose. However, it seems guaranteed (check out today's top leader column in The Times) to exacerbate Government suspicion of the courts, and for all that they say that it is important, it is not important in domestic law but in domestic politics. The irony of Tony Blair being forced out by wall-to-wall coverage of the appeal should also worry people concerned about the courts' functions.
posted by Richard Heald | 5:00:00 am
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