Soldiers' families win Iraq war review

Staff and agencies
Wednesday July 26, 2006
Guardian Unlimited

The families of four British soldiers killed in Iraq won the right today to challenge the government's refusal to hold a public inquiry into why Britain joined the war, a ruling their lawyers described as a "stunning victory".

The decision by the court of appeal overturned an earlier high court ruling denying the relatives the right to apply for judicial review of the government's decision.

The panel of appeal court judges rejected arguments from lawyers representing the prime minister, the secretary of state for defence and the attorney general that it would be an "unwarranted shift of power" for the courts to make pronouncements on the government's right to go to war.

However, in their ruling the three senior judges warned the families that they were unlikely to succeed in forcing a public inquiry given that the issues at stake were "essentially matters for the executive and parliament".

"At last our case will be heard in full," said Peter Brierley, whose son Shaun died in March 2003 when the Land Rover he was in overturned on patrol in southern Iraq.

"I am convinced that my son died for no good reason as he should not have been sent to Iraq in the first place.

"I am looking forward to hearing the three defendants having to explain how they justify the invasion."

Rose Gentle, whose 19-year-old son Gordon was killed by a roadside bomb in Basra in June 2004, also welcomed the ruling.

"He was in Iraq to fight for his country, but I now know he should never have been sent there. He died for nothing," Mrs Gentle said.

"I have done everything in my power to persuade Tony Blair to meet with me but he refuses. Now I will finally get to see the government have to justify their decision to invade Iraq, which most of the public believe was unlawful and counterproductive."

The families argued for the judicial review on the basis that the government ought "to be held accountable" for a war which "breached international law and was based on a series of lies".

Their legal battle suffered a major setback in December when their application was blocked by Mr Justice Collins in the high court on the grounds that the case was "unarguable".

Today the appeal judges overturned that decision. Also, instead of sending the case back to the high court, as is the usual practice, they announced that the court of appeal would hear the full application.

The decision was made by three of the country's most senior judges - the master of the rolls, Sir Anthony Clarke, the president of the Queen's bench division of the high court, Lord Justice Judge, and Lord Justice Dyson. The new hearing will take place before the same judges on November 6.

"This is a stunning victory," said Phil Shiner, the families' solicitor.

"The government now have to produce evidence to a full hearing in the court of appeal. That evidence needs to establish once and for all whether the decision to invade was lawful.

"In particular, the government must finally explain how the 13-page equivocal advice from the attorney general of March 7 2003 was changed within 10 days to a one-page, completely unequivocal advice that an invasion would be legal.

"My clients believe he impermissibly changed his advice because he was sat on by the prime minister and others in government. In changing his advice he sent these soldiers to their deaths."

In their ruling, the appeal judges said it was "at least arguable that the question whether the invasion was lawful - or reasonably thought to have been lawful - as a matter of international law is worthy of investigation".

But they warned the families of the scale of the task ahead.

"We stress that, although we have decided to grant permission, we see formidable hurdles in the way of the applicants and do not wish to encourage them to think that they will succeed," the ruling read, adding: "We are doubtful whether it would be appropriate to order a public inquiry of the kind sought."

Permission to appeal was being granted "because the case raises questions of considerable general importance which should, we think, be finally decided after full argument".

The question of whether an inquiry should be ordered into the lawfulness of the invasion was based around Article 2 of the European Convention on Human Rights, which protected the right to life and was therefore "of some considerable importance", they added.

The other two family members involved in the case were Beverley Clarke, whose son David was killed by so-called "friendly fire" in March 2003, and Susan Smith, the mother of Phillip Hewett, who was killed by a roadside bomb in July last year.

A spokesperson for attorney general Lord Goldsmith said: "The judgment today by the court of appeal is only a decision to grant permission to apply for judicial review.

"While the government deeply regrets the deaths of members of the armed forces in Iraq, it will continue to argue that the decision not to grant a public inquiry was entirely reasonable.

"There have already been four inquiries into the Iraq war - Hutton, Butler, intelligence security committee and the foreign affairs committee.

"At the full hearing, the government will continue to argue strongly that there is no legal merit in the applicants' case and that issues relating to the use of armed force are fundamentally matters for the elected government to decide, not for determination by the courts.

"The court of appeal itself today recognised that the case was a marginal one."