There has been significant commentary and conjecture over the decision in R (Smith) v Secretary of State for Defence & Anor (see our post or read the judgment). The Supreme Court seemed to have decided by a 6-3 majority that the Human Rights Act did not apply once a soldier stepped out his or her base, therefore reversing a previous decision by the Court of Appeal that it did.
But the most interesting comments from a legal perspective have been on the question as to whether the decision was in fact binding. Adrian O’Neil QC picked up the point in an interesting commentary piece on the UK Supreme Court Blog.
Ordinarily, a majority decision of the Supreme Court is straightforwardly binding on (i.e. it must be followed by) all lower courts. It is also unusual for the Supreme Court to reverse its own decisions, although this is possible on limited occasions, so its judgments effectively set out the law for all judges to follow.
But this case may be different, as at least three of the judges appear to have considered that their discussions were in fact “obiter”. In other words, of only persuasive (albeit highly persuasive, given the court), but not binding, authority. In Lady Hale’s dissenting judgment, she said that “Mrs Smith must wonder why she is in this court. She did not ask to be here. All she wants is a proper inquiry… She had to begin these proceedings because of shortcomings in the first inquest, which are now conceded both by the Coroner and by the Ministry of Defence.” The crucial point came next:
But all that is now behind her. A new inquest is to be held and those points are conceded. More than that, Mrs Smith wished to establish that her son had died “within the jurisdiction” of the United Kingdom, so that he and she were covered by the guarantees in article 2 of the European Convention on Human Rights. This imposes upon the state a duty, not only to avoid taking life, but also to take positive steps to protect the right to life in a variety of ways. One of these is to hold a proper inquiry, in which the family of the deceased may play a proper part, if it appears that the state may have failed in its responsibility to protect life. But both of these points have also been conceded. The Ministry of Defence accept that Private Smith was within the jurisdiction of the United Kingdom when he died. They will also not object to an inquest which examines, not only the precise cause of his death, but also the circumstances in which it took place… [emphasis added]
The key is that whatever the decision on the applicability of the Human Rights Act outside of soldiers’ bases, Jason Smith was inside his base at the material times, and this had been accepted by all parties. The Ministry of Defence accepted that it owed him a duty under the Act within his base, as it exercised the appropriate level of control over that environment to allow it to comply with the strict requirements of the Act. Therefore, it was entirely irrelevant to the outcome of this case, and speculative (although certainly interesting) to ask what would have happened if he was outside of the base. As Lady Hale put it:
That is all that is needed to decide this case. The Ministry of Defence have appealed to this court because both the trial judge and the Court of Appeal accepted the invitation of both parties to decide more than they needed to decide. Of course they meant to be helpful.  But because the Ministry of Defence did not like what they said, Mrs Smith has had to wait for more than two years for the case to be over so that the fresh inquest can be arranged. Perhaps worse, it is not at all clear what this court is doing.
She concluded “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”.
Joshua Rozenberg also points out that two other judges expressed similar concerns. Lord Walker expressed “disquiet” and said that “It is not the function of this Court to deliver advisory opinions…” Lord Collins agreed that “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 what is the status of judgment? Lady Hale was clear that she considers the views of the court to be “technically… not binding, but they are of course persuasive”. This effectively means that the Supreme Court justices have possibly written a very powerful academic essay, but not a binding judgment on battlefield human rights.
There is nothing wrong or particularly unusual about a higher court providing opinions on important issues of principle which are not central to a particular case. However, due to the nature of the common law system which rests on the system of binding precedent (i.e. lower courts look to higher courts for legal principles), peripheral discussions of principle such as the jurisdiction discussion in Jason Smith’s case, whilst interesting and a useful steer for lower courts, are likely to lose their unanswerable legal force in future cases.
The decision in Smith only serves further to emphasise the importance of the awaited outcome in Al-Skeini in the ECtHR GC. On one view, the decision on jurisdiction in Smith is simply the Supreme Court applying the mirror approach to Strasbourg jurisprudence; cautiously keeping pace with the international court but not daring to step ahead of it. But this was a field where Strasbourg has, at least according to the minority, apparently given a tentative green light in a number of its decisions touching on (but not finally deciding) jurisdiction for military operations abroad and an incremental approach would not have been especially legally courageous.
This leaves the law on the matter unclear, which is highly unsatisfactory. As such, it seems highly likely that a similar matter – this time involving the death or injury of a soldier on the battlefield – is likely to reach the Supreme Court again (by way of the European Court of Human Rights) in the near future in order to provide legal certainty to those fighting abroad.