John Jackson (London, Mishcon de Reya & Unlock Democracy): An important part of the context of Mr Justice Collins' ruling today, that sending a soldier into a battle inadequately equipped may be a breach of his or her human rights (thereby implying that the courts might have to say what “adequate equipment” is), is one of the more stark assertions by Lord Justice Moses in the BAE / SFO case. He opens paragraph 126 of the courts judgment (opens pdf) with the words “the principle we have identified is that submission to a threat is lawful only when it is demonstrated to a court that there was no alternative course open to the decision-maker.”
It would be surprising if parliament, when it reassembles, did not say “we have reservations about that.” Parliamentarians might think that the right principle is that submission to a threat is lawful if parliament itself considers that, in all the circumstances, it was the proper thing for the decision maker to do.
The scene is set for a collision – which may shortly occur – between the judges defending the rule of law and MPs defending parliamentary sovereignty. Warnings of such a collision have been made both by judges and senior academics for some time. Perhaps the outcome of all this will be the recognition that the sovereignty of the people trumps both the rule of law and the concept of parliamentary sovereignty. But a way must be found of expressing this. We live in interesting times.
