Yesterday the Supreme Court gave judgment in this case, ruling that the article 2 Convention right to life does not apply automatically to all members of the British armed forces deployed anywhere abroad; and that the death of a soldier does not automatically require an article 2 compliant Middleton style inquest. It’s a very welcome judgment indeed.

I say that not so much because I personally agree with the outcome (though I wrote last year that I think the Court of Appeal’s ruling ran contrary to the House of Lords’ judgment in Al Skeini). I say it because the entire argument about whether a soldier automatically¬†has the right to life was academic and irrelevant to the case. Collins J at first instance should never have opined on it. Arguably the Defence Secretary should never have appealed that judgment – I saw no special danger in the initial ruling – although media coverage blowing Collins J’s remarks out of proportion probably panicked ministers into thinking they must have his musings rubbished on appeal if they could.

What’s certain is that the Court of Appeal should not have ruled on the matter in the way it did. In my view a ruling that British (and other European) forces have the right to life under the ECHR even in combat situations abroad is one that only the European Court of Human Rights in Strasbourg can sensibly make. If a British court has to do so because it is necessary in order to decide a case, then it may be right to do so, for instance in order to provide reasoning for the ECtHR to consider and if need be criticise. But it was quite wrong for the courts to hear extensive argument on this where the point was completely hypothetical.

As I wrote last year, the Court of Appeal’s judgment was

a badly-reasoned, wrong appeal ruling on a purely hypothetical legal point which has never actually arisen. Nothing could be more Dickensian. This is an unjustified, wrong-headed judicial frolic, and I hope the Lords puts the genie back in its box. The question whether troops are entitled to human rights protection in battle should be settled when a real case arises, and preferably in Strasbourg.

I’m glad the genie is now bottled. Joshua Rozenberg agrees with me, though I’d blame the Supreme Court, which I think has now done the right thing, less than I’d blame the courts below.

Incidentally, Lady Hale’s judgment seems to me slightly strange, as I think Joshua Rozenberg implies it seems to him. I see her point that ultimately the Court’s ruling on the “jurisdictional” issue can be seen as obiter (in other words, not necessary to its decision and so not binding on lower courts). But I don’t think it follows that it did not reverse the Court of Appeal’s judgment on the point, or allow the appeal. The other Justices seemed to think they were doing just that, and surely they must be right. Otherwise, what did Lady Hale think she was doing?

2010-07-02T16:04:14+00:00Tags: , , , |