Do Not Go Gentle Into That Good Night

The importance of the case being brought against the Prime Minister of the United Kingdom, the Secretary of State for Defence, and the Attorney General by the families of two British soldiers killed in the war on Iraq is shown by the nine Law Lords who have been sitting to hear it during this week.

'The House of Lords has explained that its role is not to reverse errors in the application of settled law...', David Pannick QC writes in the Times today, and 'Since the law lords are concentrating on difficult points of law, they are more 'likely to arrive at the right answer for the right reasons, or at least give the best possible answer when the case concerns a dispute between two rights or between two wrongs, if they draw on the collective brain power and distinct legal experience of more of its members...Further, as Lord Hoffmann noted in a 1998 judgment, there are “cases in which one feels that a slight change in the composition of the Appellate Committee would have set the law on a different course”.

The Law Lords are sitting in full force then, and sitting to set the law on a course.

' The legal argument to be made before the 9 Law Lords is that the right to life, enshrined in Article 2 of the European Convention on Human rights, imposes an obligation on the government to take reasonable steps to ensure that its servicemen do not face the risk of death in military activities without taking reasonable steps to ensure that those activities are lawful. It will be argued that those reasonable steps were not taken by the Government.

This claim was previously dismissed by the Court of Appeal, which stated that the question whether the United Kingdom had acted lawfully in sending its troops to Iraq was not justiciable, since decisions of policy made in the areas for foreign affairs and defence were, in the court's view, matters for which the Government alone was responsible.'( quoted from Public Interest Lawyers).

This case is fundamental to the halting of the degradation of the United Kingdom constitution carried out by New Labour in the last decade.

Can the Executive be held to account for its actions? Once, most certainly; for the Law Lords were part of Parliament, to whom the Executive answers, until the Constitutional Reform Act of 2005 when the then Lord Chief Justice, Woolf, sold the pass.

The Law Lords themselves have been ousted by New Labour, precisely to leave an authoritarian Executive untrammeled by Parliament, but the New Labour authoritarian state has not yet ousted the Law itself. The capacity to enhance law may have been reduced but the power to uphold it remains.

Is the war on Iraq a rogue act by a proper Executive, or do we have a wholly rogue Executive?

If either, in what position does this place British troops currently in the field?

As the QC representing the two families argued in the House of Lords: 'the Government owes soldiers a special duty because they are “under the unique compulsory control of the State and have to obey orders...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,”.

Soldiers have a covenant too with their enemy: they do not wilfully slaughter the innocent, or even those in arms against them; they do not obey unlawful orders if they can resist duress. They cannot be expected to assess the constitutionality of the Executive.

That is what the nine Lords of Appeal in Ordinary sitting here are for. Holding the Executive to account is their task and their duty.