Four landmark court rulings last week placed into sharp focus the ongoing trial of strength between ministers and the judiciary


The constant trial of strength between ministers and judges is never less than intriguing. But it becomes utterly absorbing when the government is fighting an unpopular war abroad and a terrorist threat at home.



In just three days at the end of last week, the courts delivered four rulings of increasing importance. Each demonstrated, in Lord Atkins’ famous denial of Cicero, that ‘amid the clash of arms, the laws are not silent’. And each told us a little more about an individual judge.



The first ruling came from a panel of nine law lords. They met to consider whether Rose Gentle, the mother of a soldier killed in Iraq, could compel the government to hold an independent inquiry into the decision to invade in 2003.



Mrs Gentle’s argument was based on article 2 of the European Convention on Human Rights, which says ‘everyone’s right to life shall be protected by law’. The Human Rights Court has interpreted this to mean that a member state must establish a framework of laws to protect life. There must also be an independent investigation if agents of the state have failed in their duty to provide protection.



All nine law lords agreed that her argument did not get off the ground. Article 2 did not protect life in general, irrespective of the threat. It did not create a duty not to go to war, or even a duty to ascertain whether an invasion would comply with international law.



Lady Hale agreed, but only with reluctance. ‘I wish we could spell out of article 2 a duty in a state not to send its soldiers to fight in an unlawful war,’ she said. No other law lord agreed. While it would be going too far to paint Lady Hale as a maverick, the first woman law lord is not shy about going out on a limb. She was also more willing than some of her brethren to hold that the two soldiers were ‘within the jurisdiction of the United Kingdom when they met their deaths’, and so were protected by article 2.

Less than an hour later, the Court of Appeal granted an appeal by Abu Qatada – though his nom de guerre and close association with Osama bin Laden were curiously absent from the judgment delivered by Lord Justice Buxton, generally regarded as a member of the awkward squad.



Abu Qatada had appealed against a decision by the home secretary to deport him to his native Jordan as a danger to Britain’s security. SIAC, a court set up in 1997 to decide immigration appeals in national security cases, had rejected Abu Qatada’s claim that his human rights would be violated if he were sent home. A memorandum of understanding between Britain and Jordan ‘would reduce the risk sufficiently for removal of the appellant not to breach the UK’s obligations’.



But the Court of Appeal decided that SIAC had misunderstood the fundamental nature of the ban on the use of evidence obtained under torture and so its decision could not stand.



This conclusion is consistent with the European Court’s decision on February 28 in Saadi v Italy. The Strasbourg judges rejected Britain’s argument that the risks to the individual should be balanced against the dangers to the state, refusing to overturn its earlier decision in Chahal.



So Lord Justice Buxton and his colleagues may well be right as a matter of law. And the prohibition against torture must remain absolute. But the law lords should surely agree to hear an appeal by the home secretary. Otherwise the world’s terrorists will simply flock to Britain. The more dangerous they are, the more protection we will have to give them.



Last Thursday, Lord Justice Moses and Mr Justice Sullivan handed down an eloquent but undisguised cry of pain. They decided that the director of the Serious Fraud Office, Robert Wardle, had acted unlawfully when he stopped investigating bribery allegations against BAE Systems in relation to military aircraft contracts with Saudi Arabia. It is hard to tell which upset the judges more: Mr Wardle’s surrender to a blatant threat or the government’s argument that, although an attempt by a foreign government to pervert the course of justice may be ‘a matter of regret, it was also “a part of life”’.



Lord Justice Moses has a strong sense of justice. In 1992, prosecuting three directors of the Matrix Churchill machine tools company accused of dishonestly selling arms-related material to Saddam Hussein’s Iraq, he dropped the case after Alan Clark, the former defence and trade minister, admitted he had advised manufacturers to be ‘economical... with the actualité’. Alan Moses QC emerged from the resulting three-year Scott inquiry with his reputation enhanced and soon became a judge.



On Friday, it was the turn of Mr Justice Collins to hold that article 2 of the European Convention on Human Rights applied to soldiers serving in Iraq. And not just when confined to barracks: ‘to send a soldier out on patrol or, indeed, into battle with defective equipment could constitute a breach of article 2’, he commented, adding that his ruling was not affected by the law lords’ ruling two days earlier.



But Mr Justice Collins had also been the first judge to dismiss Mrs Gentle’s claim as ‘unarguable’. He has certainly inherited a sense of social justice from his father, the late CND leader and anti-apartheid campaigner Canon Collins. But, like all the judges I have mentioned, he knows the limits of the law.



joshua@rozenberg.net