Mothers ask Lords to order
Tony Blair's government exposed soldiers to the risk of death by failing to take sufficient steps to ensure that its proposed invasion of Iraq was lawful, Britain's highest court was told yesterday.
The nine-judge panel of law lords, convened instead of the usual five judges because of the constitutional importance of the case, is being asked to order a public inquiry into the death of two 19-year-old soldiers in Iraq.
The state's duty to safeguard life was owed to soldiers, "who are under the unique compulsory control of the state and have to obey orders", said Rabinder Singh QC, for Rose Gentle and Beverley Clarke, mothers of the two soldiers. "They have to put their lives in harm's way if necessary, because their country demands it. There is what some people call a military covenant between the state and those who are literally prepared to put their lives at risk for the sake of their country."
The case marks the first time in 45 years that the House of Lords has been asked to decide whether judges have the power to rule on essentially "political" issues of national defence, or whether such matters are purely for the government of the day. Clarke and Gentle are appealing against a court of appeal ruling in December 2006 that the government is not obliged to hold an independent inquiry into their sons' deaths under article 2 of the European convention on human rights, which protects the right to life. Trooper David Clarke, from Littleworth, Staffordshire, was one of two soldiers who died in March 2003 in a "friendly fire" incident west of Basra. Fusilier Gordon Gentle, from Pollock, Glasgow, died in June 2004 in a bomb attack on British vehicles in Basra.
Singh said the mothers had "come to court with reluctance". He added: "They are proud of their sons, who died with honour serving their country."
Lord Bingham, the senior law lord, sitting with Lords Hoffmann, Hope, Scott, Rodger, Carswell, Brown and Mance and Lady Hale, said the judges did not want the mothers to think they were "unmindful of the human loss which underlies these proceedings".
Singh said the mothers were grieving parents who had doubts about the legality of the invasion of Iraq, and the process that led to it, including advice from the former attorney general Lord Goldsmith.
The families wanted an explanation as to how 13 pages of "equivocal" advice from the attorney general were reduced within 10 days to one page of completely unequivocal advice that an invasion would be legal. As the resignation letter of the Foreign Office's deputy legal adviser, Elizabeth Wilmshurst, made clear, the attorney general changed his mind "not once but twice" in relation to the legality of the war, the QC said. The overwhelming body of advice the government had received, including from the Foreign Office itself, was that the war would not be lawful without a second UN resolution.
Mrs Gentle said yesterday: "Tony Blair sent our boys to war on a lie. He just agreed with George Bush right away. They didn't even give it a second thought." She said the inquiry should have been held when Blair was still in office. "It's been five years now - what have they got to hide?"
Phil Shiner, the solicitor representing the mothers, said: "If we get our inquiry ... we would have to hear evidence from Tony Blair, Lord Goldsmith, Geoff Hoon and Jack Straw."
The law lords are expected to take at least six weeks to deliver their judgment.