Three hammer blows

A judiciary completely independent of government is an essential cornerstone of democracy. In three days, judges in the High Court in London and the Court of Appeal have delivered three hammer blows to the government, encompassing the deportation of terrorist suspects, government interference in the course of justice and now the rights of service personnel and the powers of coroners.

The ruling by Mr Justice Collins that the human rights of British soldiers could be breached if they are sent out on patrol or into battle with defective equipment will have far-reaching implications for each of the armed forces, as is confirmed by the immediate decision by the Ministry of Defence to appeal. There can be no guarantee against death in war; those who take up arms on behalf of the rest of us should, nevertheless, be able to expect weaponry and equipment of a standard which provides maximum practical protection. The question of how far the right to life (Article 2 of the European Convention on Human Rights) can extend to those engaged in armed conflict has been raised by the deaths of soldiers and flying crew which might have been prevented by better or more equipment. The inquests into deaths in Iraq and Afghanistan have revealed a series of alarming failures in that respect and the inescapable conclusion is that some, at least, could have been prevented.

Just as significant, therefore, is the judge's rejection of an attempt by the Defence Secretary to restrict what coroners can say in their verdicts on military deaths. The test case was the inquest into the death of Pte Jason Smith, a Territorial Army soldier from Hawick, who died of heatstroke in Iraq. The coroner recorded a verdict that Pte Smith's death was caused by "a serious failure to recognise and take appropriate steps to address the difficulty that he had in adjusting to the climate". The point of contention was whether the phrase "serious failure" contravened the rule that coroners' findings must not be framed in a way that could support legal action.

The judge's decision that "findings of fact, however robustly stated", do not fall into this category is an overdue (and encouragingly robust) measure of support for the coroners, who have faced considerable obstruction in fulfilling their duty to establish the causes of death of military casualties. Inquests are required to establish the facts, partly in order to prevent similar deaths, yet documents have been withheld or censored under the catch-all excuse of national security.

Just as the claim that national security would be compromised by the Serious Fraud Office's investigation of alleged corruption in the arms contract with Saudi Arabia was rejected by Lord Justice Moses, so Mr Justice Collins has proved equally unconvinced of the need to withhold information from families. National security must be safeguarded, but the case must be proven before it is allowed to impinge on justice. As Lord Justice Moses told the High Court in London in relation to the arms deal investigation: "The rule of law is nothing if it fails to constrain overweening power." The government may be reel- ing from the cumulative effect of this learned opinion, but as it continues to wrestle with constitutional reform it should build on this solid demonstration of judicial independence as the bedrock of our democratic system.