Four families of British soldiers killed in Iraq were said to have won “a stunning victory” yesterday in the quest to have the judiciary insist on a public inquiry into the legality of the removal of Saddam Hussein more than three years ago. This exaggerates massively what the High Court actually decided and provides an implausible impression of what the eventual outcome may be. That permission to apply for judicial review was granted at all, though, represents a potentially important and thoroughly dubious precedent. Whether it intended to do so or not, the court will have inspired others to proceed in a similar manner. The legal profession is thus on the edge of a minefield.

In fairness to Sir Anthony Clarke, the Master of the Rolls, Lord Justice Judge, President of the Queen’s Bench Division, and Lord Justice Dyson, all eminent men, they have sought to do their best to limit the possible damage. The three made it plain in their judgment that they were very “reluctant to grant permission to appeal” and that the chances of an ultimate success in this instance were unpromising. They asserted that “matters of this kind are essentially matters for the executive and Parliament”. These were also, it was observed, “matters to be resolved by political debate and, as it might be put, at the bar of public opinion”.

These reservations are impressive. The court has not mounted an institutional coup against the executive or Parliament. They are even more significant in that the three judges opted to refer the official application for judicial review not to a different court but to themselves. It may well proceed no further than a three-day hearing that has been scheduled for November.

Yet, if anything, the cautious manner in which the High Court has acted makes their readiness to entertain the notion of demanding a public inquiry at all more curious and contestable. Despite having outlined and largely concurred with the original rejection of this case by Mr Justice Collins last December, the court determined that it would allow the applicants a further legal opportunity on the basis of the “importance of the issue and the great public concern” about the legality of the invasion and because if the intervention could be declared illegal, then Article 2 of the European Convention on Human Rights might be relevant.

This is disturbing territory. If it is established that the controversy of a question alone is sufficient grounds to contemplate an application for judicial review, then, as Mr Justice Collins originally hinted, a “floodgate” could be opened. And if what Mr Justice Collins also described as an “over-generous application of the Human Rights Act” were to be tolerated, a vast range of political disputes would be transferred dangerously from the electoral arena into the separate realm of law.

When the men concerned enlisted in the Army, they were aware that their lives could be at risk if the Government ordered them into conflict. It is inconceivable that they thought that whether they would fight or not was a decision for the UN Security Council, let alone the judges. Mr Justice Collins noted eight months ago: “The only purpose of having the inquiry is to try to make a political point or to show that the Prime Minister has not told the truth. That, in my view, is not a proper reason for requiring an inquiry where a member of the Armed Forces has been killed in circumstances such as these”. It is a pity that his wise words were not upheld in this instance.