Lords to look at legality of Iraq war

The British House of Lords, the highest law court in the land, is to be asked to rule, in effect, on whether or not the Iraq war was legal.

They are to hear a case brought by the mothers of two soldiers killed in Iraq, who argue that the government violated their sons' right to life by rushing into war on inadequate legal grounds.

"The legality of the war on Iraq - the most important question of law of our generation - remains unresolved by any court or other independent and authoritative body in the United Kingdom," begins the petition which persuaded the judges to let the appeal go ahead.

The petition was drafted by two of the country's leading human rights QCs - Rabinder Singh of Matrix chambers, where Cherie Booth QC practises, and Michael Fordham of Blackstone chambers, the stable that includes Lord Woolf, the former lord chief justice.

The judges are unlikely to reach a conclusion themselves on whether the war was legal. But the mothers' solicitor, Phil Shiner, said yesterday that the arguments put forward by the lawyers had hardened since the court of appeal rejected the mothers' case, and would require the law lords to consider the government's moves in the last few weeks before the war.

The QCs say the state's duty to safeguard life, under article 2 of the European convention on human rights - made part of UK law by the Human Rights Act - means that there must be "independent, judicial consideration of the government's approach to the legality of the war".

The effect of article 2, they argue, "is to require an independent investigation where, as here, it is arguable the state has sent its soldiers to war without due diligence in its approach to the legality of that war in international law, given the state's safeguarding duty to protect life".

However, if successful, the government could be forced to hold an independent enquiry into the way the attorney general reached his conclusion that the war in Iraq would be lawful. This is something that Blair has always strenuously tried to avoid. Indeed, when the attorney general decided the war was lawful, he appeared to be going against his previous opinion and set off a series of resignations amongst his staff who were outraged by his apparent U-turn.

There is, of course, the delicious irony that this appeal is coming out of the same Matrix chambers where Cherie Booth practices, a name that might not be instantly recognisable to American readers as Tony Blair's wife.

The law lords decision to hear this case overturns the previous appeals court ruling that it was impossible to separate questions of law and political wisdom in deciding to wage war, and that policy issues were not a matter for the courts.

Now five of Britain's top judges will hear the case afresh. This case may not answer the question, but the day is coming when the legality of the Iraq war will be decided in a court of law. And, on the day when lawlords finally give a definitive reading, I fully expect the illegality of this conflict to be exposed. Indeed, in his final advice to the cabinet the attorney general himself included the caveat that, although he was claiming that the war could be argued to be legal, there was every chance that a court could disagree with his findings.

That day is a step closer.

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Tags: Iraq war, House of Lords, Iraq war legality, Blair, Attroney General, Lord Goldsmith