If Lady Hale is right, the Supreme Court did not allow an appeal by the Ministry of Defence this morning after all. There was no majority decision after all that the Human Rights convention applied to troops abroad only if they were on a British military base.
That was because the Ministry of Defence had already conceded that there should be a new, convention-compliant inquest into the death of Pte Jason Smith – who had indeed died at a British base. The question was therefore academic – or, as the lawyers say, moot.
“So we are merely making observations on two extremely important and interesting questions but we are not deciding anything,” Lady Hale said.
“In those circumstances I doubt whether any of the important and interesting things which are said about those questions in this court can be part of the essential grounds for our decision and thus binding upon other courts in future.”
Her conclusion on the two issues before the court had an inevitable sense of the absurd.
“I do not believe that we are either allowing or dismissing an appeal on either issue,” she said, “but if we are I would dismiss it on both.”
Lest it be thought that she was on a frolic of her own, it is worth noting that Lord Walker was equally concerned.
In common with other members of this court I feel some disquiet about our engaging in protracted deliberation and the preparation of lengthy judgments on two issues which (as all parties agree) do not actually affect what is to happen in consequence of the tragic death of Pte Smith. It is not the function of this Court to deliver advisory opinions…
And Lord Collins agreed:
The question is plainly one of importance, but it is unfortunate that it has been decided in the courts below, and will be decided in this court, in a case in which the point does not arise for decision and in which it is conceded to be academic. There is an obvious danger in giving what are in substance advisory opinions on hypothetical facts divorced from any concrete factual situation… That is particularly so in the present case.
So why did they hear the case?