Long to reign over us...

How it all began:

Whitehall, February 6, 1952.

Upon the intimation that our late Most Gracious Sovereign King George the Sixth had died in his sleep at Sandringham in the early hours of this morning the Lords of the Privy Council assembled this day at St. James's Palace, and gave orders for proclaiming Her present Majesty; 

Whereas it hath pleased Almighty God to call to His Mercy our late Sovereign Lord King George the Sixth of Blessed and Glorious Memory by whose Decease the Crown is solely and rightfully come to the High and Mighty Princess Elizabeth Alexandra Mary: We, therefore, the Lords Spiritual and Temporal of this Realm, being here assisted with these of His late Majesty's Privy Council, with representatives of other members of the Commonwealth, with other Principal Gentlemen of Quality, with the Lord Mayor, Aldermen and Citizens of London, do now hereby with one voice and Consent of Tongue and Heart publish and proclaim that the High and Mighty

Princess Elizabeth Alexandra Mary is now, by the Death of our late Sovereign of Happy Memory, become Queen Elizabeth the Second, by the Grace of God Queen of this Realm and of all Her other Realms and Territories, Head of the Commonwealth, Defender of the Faith, to whom Her lieges do acknowledge all Faith and constant Obedience, with hearty and humble Affection ; beseeching God, by whom Kings and Queens do reign, to bless

the Royal Princess Elizabeth the Second with long and happy Years to reign over us. 

Given at St. James's Palace this Sixth day of February in the year of our Lord one thousand -nine hundred and fifty-two.

You can see it read here

It will be noticed that the UK is described as '"this Realm" above - this is because they had not worked out how to include Ireland (following the declaration of the Republic in 1949) in the new Queen's title - in the end the Royal Style and Title Act 1953 declared the Queen to be Elizabeth II, by the Grace of God of the United Kingdom of Great Britain and Northern Ireland and of Her other Realms and Territories Queen, Head of the Commonwealth, Defender of the Faith  in May 1953.

Canada jumped the gun in 1952 and in-politically proclaimed the Queen to be "our only lawful and rightful Liege Lady Elizabeth the Second by the Grace of God, of Great Britain, Ireland and the British Dominions beyond the Seas QUEEN, Defender of the Faith, Supreme Liege Lady in and over Canada"   At least they left out India and France (last claimed 1801).  Thankfully Canada passed an Act in 1985 which styled the Queen as Elizabeth the Second, by the Grace of God of the United Kingdom, Canada and Her other Realms and Territories Queen, Head of the Commonwealth, Defender of the Faith.

These are the signatories to the Proclamation - I have tried to identify them all in square brackets - quite an interesting random bunch of Privy Counsellors, beyond the obvious luminaries.  Despite what it says above they are all from the UK and none are from the Commonwealth (although those representatives might have been present but may not have signed).  The signatories appear to include the man who would become the legal legend - Lord Denning MR:

Simonds C. [Lord Chancellor]

Winston S. Churchill. [Prime Minister]

David Maxwell Fyfe. [Home Secretary]

Woolton. [Lord President of the Council]

W. S. Morrison. [Speaker]

C. R. Attlee.[Leader of the Opposition]

Waverley. [Former war time Cabinet Minister]

Samuel. [Leader of the Liberal Party in the House of Lords]

Harry Crookshank.[Leader of the House of Commons, Lord Privy Seal]

Leathers.[Minister for Coordination of Transport, Fuel and Power]

Selborne.[Former Minister of Economic Warfare and i/c SOE during the War]

Davidson.[Former Chancellor of the Duchy of Lancaster under Baldwin]

Norfolk, EM.[Lord Earl Marshal]

Ogmore.[President of the Liberal Party]

James Griffiths.[ Deputy Leader, Labour Party]

Arthur G. Bottomley.[Former junior minister under Clement Attlee - MP 1945-1983, died 1995]

Clement Davies.[Leader of the Liberal Party]

Wm. London. [Bishop of London]

J. Chuter Ede. [Home Secretary under Attlee]

Nathan. [Junior Minister under Attlee]

Mersey.[Privy Counsellor -son of the Judge who headed the Titanic Inquiry]

Goddard.[Lord Chief Justice]

A. T. Denning [Alfred Thompson Denning - i.e. Lord Denning MR as he would become - then Lord Justice Denning and Privy Counsellor, therefore eligible to sign the Proclamation]

Reid.[The Scottish Law Lord]

Hartley Shawcross.[Former Labour Attorney General and prosecutor at Nuremberg]

Macdonald of Gwaenysgor.[Paymaster-General under Attlee]

Shepherd.[Former House of Lords Chief Whip under Attlee]

HMQ was in Kenya for her accession, and so a second Accessional Council was held on her return so that she could swear to defend the Church of Scotland as required by the Acts of Union 1707:

And lastly that after the decease of Her present Majesty (whom God long preserve) the Soveraign succeeding to Her in the Royal Government of the Kingdom of Great Britain shall in all time coming at His or Her Accession to the Crown swear and subscribe that they shall inviolably maintain and preserve the foresaid Settlement of the true Protestant Religion with the Government Worship Discipline right and Privileges of this Church as above established by the Laws of this Kingdom in Prosecution of the Claim of Right[

At the first state opening of Parliament after the accession (4th November 1952) HMQ then had to give this oath and sign this as required by the Accession Declaration Act 1910, the Act of Settlement 1700 and the Bill of Rights 1688:

Until 1901 this Test Act oath designed to keep out Catholics was a bit more anti-Pope:

I, N, profess, testify, and declare, that I do believe that in the Sacrament of the Lord's Supper there is not any Transubstantiation of the elements of bread and wine into the Body and Blood of Christ at or after the consecration thereof by any person whatsoever: and that the invocation or adoration of the Virgin Mary or any other Saint, and the Sacrifice of the Mass, as they are now used in the Church of Rome, are superstitious and idolatrous. And I do solemnly in the presence of God profess, testify, and declare that I do make this declaration, and every part thereof, in the plain and ordinary sense of the words read unto me, as they are commonly understood by English Protestants, without any such dispensation from any person or authority or person whatsoever, or without thinking that I am or can be acquitted before God or man, or absolved of this declaration or any part thereof, although the Pope, or any other person or persons, or power whatsoever, should dispense with or annul the same or declare that it was null and void from the beginning.

At least we have moved on from that sort of rhetoric - although the ban on catholics being in the line of succession continues in section 2 Act of Settlement 1700:

Provided always and it is hereby enacted That all and every Person and Persons who shall or may take or inherit the said Crown by vertue of the Limitation of this present Act and is are or shall be reconciled to or shall hold Communion with the See or Church of Rome or shall profess the Popish Religion or shall marry a Papist shall be subject to such Incapacities as in such Case or Cases are by the said recited Act provided enacted and established

We await a Bill to be agreed with all the other Commonwealth realms (as required by the Statute of Westminster 1931: (And whereas it is meet and proper to set out by way of preamble to this Act that, inasmuch as the Crown is the symbol of the free association of the members of the British Commonwealth of Nations, and as they are united by a common allegiance to the Crown, it would be in accord with the established constitutional position of all the members of the Commonwealth in relation to one another that any alteration in the law touching the Succession to the Throne or the Royal Style and Titles shall hereafter require the assent as well of the Parliaments of all the Dominions as of the Parliament of the United Kingdom): to amend section 1 of the 1700 Act in so far as this provision ( the Crown and Regall Government of the said Kingdoms of England France and Ireland and of the Dominions thereunto belonging with the Royall State and Dignity of the said Realms and all Honours Stiles Titles Regalities Prerogatives Powers Jurisdictions and Authorities to the same belonging and appertaining shall be remain and continue to the said most Excellent Princess Sophia and the Heirs of Her Body being Protestants) permits the leapfrogging of male issue over first born females - just in case the Duchess of Cambridge is first delivered of a Princess....to pave the way Parliament has already made financial provision for a female heir who cannot make a living from being the  Duke of Cornwall (because she is female) (section 9 Soverign Grant Act 2011):

Where the Duchy of Cornwall is vested in Her Majesty for any period (“the relevant period”) in a financial year (and Her Majesty is accordingly entitled to its income)—

(a)the amount of the Sovereign Grant for that year is reduced by an amount equal to the income account net surplus of the Duchy of Cornwall for the relevant period, and

(b)the Treasury is to pay a grant to any person who is the heir to the throne in the relevant period.

Until the happy day of celebration of the birth of a new Prince or Princess, 3rd in line to the throne, and in the meantime........

HAPPY JUBILEE!

Justice and Security Bill published...a review......

So the long awaited JSB has been laid before Parliament today.  If passed it will permit Closed Material Procedures (CMPs) in some civil proceedings. There are going to be three stages:

FIRST STAGE - IS PII GOING TO BE CLAIMED?

The Secretary of State (S/S) must first decide whether to make or to advise another person (for example a Chief Constable) to make a claim for PII in respect of the national security disclosure.  If the claim is made and accepted by the Court - then the information is protected, will not be disclosed and will not be relied on and the matter ends there.  If the claim is not made or not accepted by the Court (i.e. S/S or other relevant person wants to rely on the disclosure or the Court thinks that the information should be disclosed under a CMP and not withheld completely) then we move to stage 2:

SECOND STAGE - APPLICATION FOR A DECLARATION

The S/S can make an application in proceedings before the High Court (Court of Session in Scotland)  or Court of Appeal for a declaration that a application for Closed Material Procedures (CMPs) may be made in the proceedings.  The Court has to grant that application if it considers that the proceedings might involve disclosure (by anybody) damaging to the interests of national security. If the Court grants the application, then we move to stage 3:

STAGE THREE: 

The relevant person who ordinarily would be required in the normal course of civil litigation to disclose documents may apply to only disclose those documents to the Court, a Special Advocate (SA) and the Secretary of State (where not a party).  In other words, the relevant person would be excused from having to disclose the documents to the other parties to the proceedings and would disclose those documents instead to the SA.  The Court must grant this application if it considers that the disclosure would be damaging to the interests of national security.  The Court can at the same time order a gisting exercise.  If the relevant person does not get permission to withhold the evidence and refuses to disclose it, then the Court can force the relevant person to make concessions or can make other coercive orders in default.  If permission is granted then the CMP will proceed as it does now in current CMP proceedings (like in TPIMs/SIAC etc) with hearings concerning the national security evidence held in camera and excluding everybody but the SA.  Parts of judgments dealing with the national security information which be closed.  The application for CMPs has to be made without notice and without any other party being present (obviously - holding the hearing with all the parties present would defeat its object).

WHY THREE STAGES?

The Bill is designed to permit S/S to intervene in proceedings to which he or she is not a party.  For example if some other agency or third party not under the control of the S/S were to be involved in proceedings in which they might be required to disclose national security information, S/S can use the first stage to intervene in order to seek a declaration that CMPs will be used.  Indeed it seems that there will be amendments to the CPR to place a duty on parties to notify S/S when CMPs might be necessary.  Once the CMP stage 1 declaration is in place, then the relevant party will be able to make an application to withhold disclosure within a CMP at stage 2.  The rules of PII are expressly preserved so that if the relevant party neglected to make a CMP application at stage 2, then S/S could still intervene with a PII certificate to protect the information.  It might have been better to permit the Court to alert the S/S of the national security issue of its own motion - in case the parties had not spotted it - this is the case with PII - where it is everybody's duty, including the Court's, to take the PII point where it arises.

THE COURT & NOT HMG WILL DETERMINE THE "DAMAGING TO THE INTERESTS OF NATIONAL SECURITY " QUESTION:

This is seen as a great prize by those who oppose this Bill, but the Court is likely to defer to some extent to S/S on this question.  There is a similar jurisdiction to hold closed proceedings in the Employment Tribunal and Underhill P has given guidance in the EAT on how the national security question is to be approached:

What is in any event clear from the numerous authorities cited to me is that they contain no explicit consideration of the correct approach to be taken where a party asks the court to make an exception to the rule of open justice in the interests of national security. For the reasons that I have given there is a limit to the useful guidance that can be given. However, I think that it is possible to say the following:

(1) Any exception to the rule of open justice has to be justified. It is, as emphasised in all the cases to which I have referred, a strong rule and any justification has accordingly to be cogent.

(2) It is uncontroversial that the interests of national security are capable of justifying such an exception. But, as a matter of principle, in any case where the exception is invoked, and specifically in the case of an application under rule 54 (2), the court or tribunal must make a judicial assessment of whether they do so in the particular case. That will in principle involve striking a balance between, on the one hand, the seriousness of the prejudice to national security which is asserted, and the degree of risk that that prejudice may occur if the exception sought is not made; and, on the other, the extent of the infringement of the principle of open justice embodied in the rule and the risk of prejudice to the public interest or the interests of the individual in the particular case. On ordinary principles, the more serious the infringement of the principle the greater the prejudice, or risk of prejudice, needed to justify it: thus it will be easier to justify, say, the anonymisation of witnesses or the redaction of documents than the conducting of an entire hearing in private.

(3) Thus far the exercise would appear to be an application of the principle of proportionality of a conventional kind; and one where, because of the importance of the principle of open justice, there is a heavy burden on the party seeking the restriction. But that is not the whole picture. "The interests of national security" constitute a factor of a rather particular nature. Where those interests are indeed genuinely engaged the stakes are high: they will involve real risks to the national interest generally and, typically, real risks (of a more or less direct nature) to the lives of members of the armed forces or the security services or of others. An established risk of such outcomes must of its nature weigh heavily in the opposite balance against the principle of open justice, important though that is. Of course sometimes it will not be self-evident that any such asserted risk is indeed present or is serious. In such a case, however, the tribunal needs to be aware that the risks in question will often be of a kind which it is not well-placed to assess - even if, which will itself often be disproportionate or unrealistic, appropriate direct evidence relating to the risk could be adduced before it. Tribunals therefore need to approach the task of assessing the risk with a clear understanding of the inherent limitations in their ability to do so.
(4) Those cautionary observations do not mean that the proportionality exercise is unnecessary or that it can only have one outcome whenever an application for measures under rule 54 (2) is made. Tribunals can and should not abdicate their responsibilities to make the necessary assessment whenever national security is invoked. But they do mean that it will be necessary for tribunals to approach any such application with a recognition of the weight which must necessarily be accorded to any real risk to the interests of national security and of the limits to the assessment of that risk which it may realistically be possible to carry out.

It may be that it was with these points in mind that the draftsmen chose the word "expedient" rather than "necessary". But, whether that is so or not, I believe that the question whether an order under rule 54 (2) should be made should be approached in accordance with the foregoing guidance.

NORWICH PHARMACAL

Following the burning of HMG's fingers in Binyam Mohamed, the Bill effectively removes national security disclosure from this jurisdiction.  I suspect this will be controversial - especially where UK involvement in rendition is being alleged.

 INQUESTS NOT INCLUDED

Inquests are not included within the scope of these provisions - this will cheer a lot of people up - although it will leave Coroners unable to consider national security evidence in full as they will continue to have no power to sit fully in camera (see the 7/7 Inquest issue on that point).  Neither are county courts - although no doubt any proceedings where a CMP is necessary (certain claims made by prisoners spring to mind) could be transfered to the High Court.   None of the Tribunals are included - although I note that clause 11(2) permits S/S to widen the scope of these provisions by Henry VIII orders.  

A GOOD BILL?

Save for the Norwich Pharmacal clauses - where I think that the Court should have the say on the national security issue - I think this is a good bill and I support the introduction of CMPs as set out in previous posts here and here and here and here.  It is a second best solution; but it is necessary.  As Underhill P said above and as the European Court of Human Rights has accepted ( A v United Kingdom (2009) 49 EHRR 29). - national security is so important to all of us that it is one of those rare occasions when a breach of article 6 is justified and a necessary exception to open justice is required. 60 cases are apparently awaiting the passage of this bill (presumably stayed after Al Rawi).  60 cases which would have to be struck out or settled for potentially the wrong reasons without this Bill.  I cannot put the point better than David Anderson QC, the Independent Reviewer of Terrorism Legislation (and notice that unlike most commentators - he has seen the actual files....):

It is however apparent to me, after inspecting the files I have been shown and speaking to counsel involved, that under the current law there are liable to be cases that are settled ... which, had a CMP been available, would have been fought to a conclusion. This is an undesirable state of affairs .... We are in a world of second-best solutions: but it does not seem to me that the level of injustice inherent in the use of a CMP in a case of this nature necessarily exceeds either the injustice to the claimant of a case being struck out, or the moral hazard and reputational damage to the intelligence agencies that is caused by settling a case which, had it been possible to adduce all the evidence, would have been fought’.

EAT to lose lay members......and other employment law reforms....

What was I saying about fighting for the industrial jury?

Now its appellate big brother in the EAT is going- clause 12 of the newly introduced Enterprise and Regulatory Reform Bill - the default position is going to be


Proceedings before the Appeal Tribunal are to be heard by a judge
alone.


Unless the Judge orders that lay members should be present.  I am not as upset about this as losing lay members in Employment Tribunals as the EAT only hears appeals on the law - still another example of lay involvement in civil just being eroded  - all for the sake of saving ££££££££

In a similar vein clause 6 of the Bill seems to be putting Judges in the Employment Tribunal at risk in certain limited circumstances...what's a legal officer?


Decisions by legal officers
(1) In section 4 of the Employment Tribunals Act 1996 (composition of a tribunal),
after subsection (6C) insert—
“(6D) A person appointed as a legal officer in accordance with regulations
under section 1(1) may determine proceedings in respect of which an
employment tribunal has jurisdiction, or make a decision falling to be
made in the course of such proceedings, if—
(a) the proceedings are of a description specified in an order under
this subsection made by the Secretary of State and the Lord
Chancellor acting jointly, and
(b) all the parties to the proceedings consent in writing;
and any determination or decision made under this subsection shall be
treated as made by an employment tribunal.”


Clause 12 will give HMG powers to further cap compensation for unfair dismissal:


The limit as so varied may be—
(a) a specified amount, or
(b) a specified number multiplied by a week’s pay of the individual
concerned,
or it may be the lower of those things.
(3) Different amounts may be specified by virtue of subsection (2)(a) in relation to
employers of different descriptions.
(4) An amount specified by virtue of subsection (2)(a)—
(a) may not be less than median annual earnings;
(b) may not be more than three times median annual earnings.


& Clause 13 introduces fines for naughty employers- so less money for employees, but more for HM Treasury?


13 Power of employment tribunal to impose financial penalty on employers etc
(1) After section 12 of the Employment Tribunals Act 1996 insert—
“Financial penalties
12A Financial penalties
(1) Where an employment tribunal determining a claim involving an
employer and a worker—
(a) concludes that the employer has breached any of the worker’s
rights to which the claim relates, and
(b) is of the opinion that the breach has one or more aggravating
features,
the tribunal may order the employer to pay a penalty to the Secretary
of State (whether or not it also makes a financial award against the
employer on the claim).
(2) The amount of a penalty under this section shall be—
(a) at least £100;
(b) no more than £5,000.


Lots to look forward to.....................

More support for Closed Material Procedures...

Further to my earlier post reporting support for CMPs from Mitting J and an even earlier post than that....

The Royal United Services Institute for Defence and Security Studies has come out in favour of CMPs in civil cases -the report is here.

Lord Carlile of Berriew CBE, QC is one of the authors who echoes my own position:

Public Interest Immunity [PII] is available for national security in such cases: however, if the result of refusing disclosure of documents means that there cannot be a fair hearing, the Government has little option but to settle the proceedings. This can result in the unwelcome outcome of terrorists being paid large sums of taxpayers’ money.

He quotes his successor as Independent Reviewer of Terrorism Legislation, David Anderson QC:

‘It is however apparent to me, after inspecting the files I have been shown and speaking to counsel involved, that under the current law there are liable to be cases that are settled ... which, had a CMP been available, would have been fought to a conclusion. This is an
undesirable state of affairs .... We are in a world of second-best solutions: but it does not seem to me that the level of injustice inherent in the use of a CMP in a case of this nature necessarily exceeds either the injustice to the claimant of a case being struck out, or the moral hazard and reputational damage to the intelligence agencies that is caused by settling a case which, had it been possible to adduce all the evidence, would have been fought’.

Lord Carlile goes on:

I agree with those observations, made after a careful examination

of all the available evidence. CMPs offer no injustice, whereas the

absence of them may well lead to injustice to intelligence agencies,

and thereby to the public purse.

Here here

The bill is out on Thursday.....

Fight for the Industrial Jury...

The Court of Appeal resisted the temptation to interfere with an Employment Tribunal's judgment because it thought better to trust to the:

the commonsense, practical experience and sense of justice of the ET sitting as an industrial jury.

Gover and others v Propertycare Ltd [2006] EWCA Civ 286 per Buxton LJ

It seems that HMG does not want litigants enjoying the expensive luxury of being judged by that jury and on 6th April the right to trial by the industrial jury was removed in unfair dismissal cases. These will now be heard by a judge alone and that judge alone will have a discretion to order trial by jury having regard to these matters [sub-section 1 is jury; subsection 2 - judge alone]:

(a) whether there is a likelihood of a dispute arising on the facts which makes it desirable for the proceedings to be heard in accordance with subsection (1),

(b) whether there is a likelihood of an issue of law arising which would make it desirable for the proceedings to be heard in accordance with subsection (2),

(c) any views of any of the parties as to whether or not the proceedings ought to be heard in accordance with either of those subsections, and

(d) whether there are other proceedings which might be heard concurrently but which are not proceedings specified in subsection (3),
I urge all practitioners to make the views of their clients known under (c). The delicious result of procuring justice for your client by a majority decision of the lay members of the Tribunal over the battled hardened single vote of the Employment Judge is a reminder that the courts and tribunals of England and Wales are concerned with justice and not only with law.  Last night I watched the new episode of Silk - full of the usual procedural and professional inaccuracies and outrages but it did show a jury rejecting the legal directions of a judge and exercising their constitutional freedom to do as they please in the provision of justice.  The cause of action is unfair not unlawful dismissal - the industrial jury should judge what is fair or not; not a lawyer of 5 years or more standing who has not worked on the shop or office floor; who does not know what the jury knows....

As Browne-Wilkinson P held in the EAT in the landmark case of Iceland Foods v Jones

the function of the industrial tribunal, as an industrial jury, is to determine whether in the particular circumstances of each case the decision to dismiss the employee fell within the band of reasonable responses which a reasonable employer might have adopted. If the dismissal falls within the band the dismissal is fair: if the dismissal falls outside the band it is unfair.

Keep applying for trial by industrial jury!   It is what your client deserves......

Lord Steyn said in R v Conner (albeit in the criminal context):

Lord Devlin observed "that trial by jury is more than an instrument of justice and more than one wheel of the constitution: it is the lamp that shows that freedom lives": Trial by Jury, (1956), p 164. This was a reference to the candles that were lit in London in the windows of London houses following the acquittal of the seven Bishops in 1688: see Macaulay, The History of England from the Accession of James II, (1849) vol 2, at p 389.The jury is an integral and indispensable part of the criminal justice system. The system of trial by judge and jury is of constitutional significance. The jury is also, through its collective decision-making, an excellent fact finder. Not surprisingly, the public trust juries. 

New Bills.....New Courts....

Following HMQ's speech from the throne, the Crime and Courts Bill has been laid before Parliament:

As trailed here, it abolishes all the little local county courts and replaced them with one County Court:  clause 17 of the Bill does the business:



There is to be a court in England and Wales, called the county court, for the purpose of exercising the jurisdiction and powers conferred on it


As I said in my earlier post it is very sad for all those local courts with their little foibles and local practices....but what is more alarming is the the list of the Judges who will be able to sit in the new Court alongside the usual CJs, Recorders, DJs, DDJs....

• District Judge (Magistrates’ Courts),
• a person appointed under section 30(1)(a) or (b) of the Courts-Martial (Appeals) Act 1951 (assistants to the Judge Advocate General),  
• a judge of the First-tier Tribunal by virtue of appointment under paragraph 1(1) of Schedule 2 to the Tribunals, Courts and Enforcement Act 2007, 
• a member of a panel of chairmen of employment tribunals established for England and Wales

Quite what that set of unsuitable and untrained judges will be doing in The County Court is beyond me........

The Bill also abolishes the Family Division of the High Court, the family jurisdiction of the county courts and the Family Proceedings Court (Magistrates administering family justice) and amalgamates them all into one single Family Court.

We are also awaiting a Justice and Security Bill as most recently discussed here.

As well as a Defamation Bill to end the right to jury trial in this area -draft bill here

An Enterprise and Regulatory Reform Bill is also expected and will include this:

Workplace dispute resolution Overhaul of the employment tribunal system and transformation of the dispute resolution landscape.

Providing options outside the employment tribunal process by encouraging ‘early conciliation’ where all claimants would lodge details of their claim with Acas giving parties the opportunity to engage in conciliation and renaming compromise agreements as ‘Settlement’ Agreements to more accurately reflect their function and encourage greater use. Improving the tribunal system by increasing flexibility and encouraging employer compliance

We wait with baited breath....

 

Closed Material Procedures...squaring the circle

Looks like Mitting J is making my point for me- as set out in my post here- he wants to explore in a two day permission hearing whether he can impose CMPs on a judicial review challenging the lawfulness of information supplied by our intelligence agencies to their US counterparts -

according to the Telegraph:

Mr Justice Mitting has raised the prospect that a case being brought against the Foreign Office by the son of a drone strike victim could only be heard behind closed doors, because of the national security implications.
As I said in my earlier post - there are some cases which can only be heard using CMPs - and in their absence all that can be done is settlement or strike out - as the solicitor for the Claimant realises (as qouted by the Telegraph)

If the hearing decides that the case cannot be heard in public, it would be struck out but Mr Stein said he would appeal against any such ruling.

I also note that Tim Otty QC (who has acted as the open advocate for the claimant in many of these cases) has published an article on this subject in which he says many good and laudable things; but fails to come up with an answer to the conumdrum of how national security claims are to be fairly considered by a Court....he seems to be barking up the wrong tree - claiming that PII does not damage national security:

There is no evidence that the existing PII system jeopardises national security. Either the Court rules in the Government’s favour on a PII application, in which case, by definition, no material is released. Or, if it rules against it, and the view of the Government remains that national security would be jeopardised then it is open to the Government to take a range of steps: either to concede the relevant point so as to render the disclosure irrelevant, or to concede the claim so as to bring an end to the proceedings. Again, on both bases, no material would be released.

But that rather makes the point - without CMPs and with only PII, then HMG has open to it a very attractive set of options: concede the evidential point or settle -  Otty does not appear capable of seeing that such a situation is as much a denial of justice to one side (the State - the taxpayer) as it is for claims to be struck out in the manner proposed by Mitting J above.

The circle needs to be squared - and CMPs are, despite their ugly unattractive qualities, the square.