Wednesday 25 July 2012

Law cannot sort out everything all of the time......

Some things are just non-justiciable - not for the Courts and not for the general law.  Questions of national security are often held to be non-justiciable.  Equally our Courts will not adjudicate on disputes between soverign states.

Religion is also one such area.  In this case the Courts were asked to adjudicate on doctrinal matters relating to the Sikh faith.  In an excellent judgment, Mummery LJ explained how the Court could not get involved:

First, non-justiciability is a salutary principle of judicial self-restraint. It ensures that judges do not overreach themselves and that they abstain from deciding questions that are neither appropriate for, nor capable of decision by, judicial method. Judges are not capable of understanding and deciding everything and it is not their function to do so. Judges are not omniscient. The courts they sit in are courts of law. There are matters on which a court is not competent to speak with authority, because of the limitations inherent in the nature of the judicial process, and therefore should not speak. That is so where the questions are not matters of law at all, such as subjective inward matters incapable of proof by direct evidence or by inference.

In my judgment, this court should put a halt to this case now. It is being asked to pronounce on a matter on which it cannot speak and should not pretend to speak with authority. The court risks diminishing respect for its own authority, as happened, for example, to the 19th century jurisdiction of the Judicial Committee of the Privy Council, when, in a more religious age, it gave appellate decisions (often ignored) in its ecclesiastical jurisdiction on points of the interpretation of scripture, doctrine, sacraments, ritual and vestments that arose in religious controversies in the established church. Those unfortunate and rather pointless battles in the courts have been rightly described as a cross-fire of jurisdictions that were a gold mine for barristers.

The parties and their numerous supporters who filled the court during the hearing should not conclude from this that the courts are letting them down. I would hope that the court is doing them a favour. The costly crudities, the outmoded methods and the unwelcome and often unpredictable outcomes endured in adversarial litigation are to be avoided, if at all possible. Experience teaches that litigation is not always a good way of resolving a dispute, as shown by the Free Church case. It is not the only way of resolving disputes. The parties here would be well advised to engage in some form of alternative resolution procedure. The continuation of these proceedings will only inflict on them and their communities further waste of time and money in the fruitless pursuit of a judicial determination that cannot be made

Voluntary procedures are available through mediators, including specialists in disputes involving religious charities. Legal procedures may also be available through the scheme-making statutory powers of the Charity Commission. The present litigation has no realistic future in the courts and must be brought to a halt now.

Tuesday 24 July 2012

Another interesting Committee session on JSB in the H of L

One issue which came up yesterday in Committee (4th day so far) was the fear that this clause could be used to bring Coroners' Inquests within the scope of CMPs:

The Secretary of State may by order amend the definition of “relevant civil
proceedings” in section 6(7). 

Well if a Court ever has to decide that question what the Advocate-General said yesterday might be of interest:

The Government's view is that the order-making power could not be used in this way. This is because we believe inquests are sui generis inquisitorial proceedings. While they are clearly not criminal, I believe they are inquisitorial rather than civil proceedings. Unlike civil proceedings with parties who may seek to settle or withdraw at any stage, an inquest must be concluded in order to establish the reason for the death. An inquest is a limited form of public inquiry to determine who the deceased was and when, where and how the eceased came by his or her death. There are no parties, only properly interested persons who are entitled to examine witnesses. We believe there would be necessity for primary legislation if this was to be extended to inquests and by extension to fatal accident inquiries in Scotland.  ...........We do not believe that the order-making power here can be extended by this coalition Government or any future Government to inquests without primary legislation.

Indeed he then went further and offered this amendment:
I said I would be willing to look at words like:
    "for the avoidance of doubt this does not include coroner's courts".

They then went on to look at Norwich Pharmacal, noting that this judgment may have rendered the whole legislative exercise somewhat unnecessary- in its 4th Report, the H of L Constitution Committee states that it believes that legislation is not necessary because:

26.  As we pointed out in our earlier report on this Bill, we know of no PII case in which a court has ordered the disclosure of intelligence secrets contrary to the wishes of a Government minister.[34] This includes Binyam Mohamed, and Omar serves only to underscore the point.[35] For the reasons set out above, the legal position is clear: there is no credible risk that the judiciary of this country would order the disclosure of secret intelligence material, wherever it emanates from.

I think the whole point is that the trust which used to exist between the intelligence and security agencies and the judiciary has somewhat broken down post Binyam Mohamed (although as to whether the judiciary or HMG caused that breach of trust is another matter) and that is why HMG thinks the Bill is necessary - in the end of the day it is for Parliament to lay down the law, not for HMG to rely on the judiciary abiding by some unwritten code that they will not go near national security matters.  

Better for it to be in the BIll rather than hidden away in some unspoken unwritten constitutional assumption....

Lord Norton of Louth sums up the high quality of the debate and its participants here.

That's it for the summer - the House adjourns on Wednesday and is back on 8th October........

Thursday 19 July 2012

Round Up

Have been in a Coroners Court and away from my laptop.

In the meantime  -

Underhill J has proposed some underwhelming changes to Employment Tribunal rules which mainly codify current practice and are not that exciting.

My prediction that a judge would not go near HMG's decision to deploy Olympic missels turned out to be a good one - see here.

There has been a continuation of the Committee debate on JSB in the House of Lords - see here.

I am suprised that PC Harwood was acquitted in the Tomlinson trial - but then I am a big fan of juries and respect their conclusions (my inquest jury delivered an excellent narrative verdict today).

More detailed blogging to come.....

Friday 13 July 2012

JSB in Committee....

There has been an excellent Committee session in the H of L on JSB.  For all those who want to rid us of this crucible of knowledge and experience, they should read the debate and scrap their plans.  A former LCJ and MR spoke (L.Woolf), a former Solicitor General and Lord Chancellor (L.Falconer), a former DG of MI5 (L.Manningham-Buller) together with countless leading QCs and solicitors (Faulks, Lester, Pannick, Thomas, Carlile etc) all provided excellent contributions.  I commend every word to anybody interested.  There is clearly a lot confusion about how the CMP procedure is going to work.  There is concern about the following:

1. That HMG will apply for PII and not CMP where the evidence is against them.
2. That a Claimant cannot apply for CMP.
3. That a judge cannot refuse PII on the grounds that CMP is more suitable or indeed does not have the power to consider the whole suite of measures in a holitstic way  - PII, CMP, gisting, rings of confidence and redaction - and is 'straitjacketed'

These are legitimate concerns and a very useful debate was had which left Lord Wallace of Tankerness (Advocate General and leading for HMG on this in the Lords) with lots of food for thought-  which might lead to improvemets to the Bill in due course.  The contribution from Lord Woolf who both applied for PII for HMG as Treasury Devil and heard PII applications as a judge should be carefully considered. I particularly like his squaring the circle analogy, which I have deployed in this blog.  He gave the leading speech in the House of Lords in Wiley - the leading authority on PII.

His comment about trust between Counsel being paramount in these sorts of proceedings is worth repeating as it is something I can attest to:

Only in a small minority of cases is it necessary to resort to the special procedures that we are debating in the course of these proceedings. Certainly on the basis of my experience, usually you can find ways of squaring the circle-ways in which the evidence can be put forward so that it is valuable to the judge without having to risk causing damage to such interests as national security. Justice is done through the advocates involved co-operating, through agreements that certain things are to be redacted, and through the trust that usually exists between the advocates appearing in the proceedings on behalf of the Crown in matters of these sorts and the advocates appearing on behalf of the other parties.

I look forward to the next Committee session on 17th July and the Report stage thereafter.

Whilst on this topic I would recommend the Bingham Centre paper on this issue and also a recent judgment of Ouseley J. where he effectively concludes that without a CMP authorised by Parliament he cannot hear the claim before him....the circle needs squaring sooner rather than later..........

Thursday 12 July 2012

New PSC...

The Queen has been pleased to approve the appointment of The Rt Hon. Lord Neuberger of Abbotsbury as a Justice and President of the Supreme Court of the United Kingdom upon the retirement of The R Hon. Lord Phillips of Worth Matravers in September 2012.

Born 1948, Called 1974, QC 1987, Recorder 1990, Chan D 1996, C of A 2004, H of L 2007, MR 2009.

 I commented on the appointment process here. I once appeared before Neuberger J in Bristol - he was very nice.  Seems to favour the fixed fee approach of the Bar to the hourly billing of solicitors, which is good:

In a speech to the Association of Costs Lawyers, he said: “Hourly billing at best leads to inefficient practices, at worst it rewards and incentivises inefficiency.”
He said it penalises those who are able to bring cases to a close quickly, adding: “It also penalises the able, those with greater professional knowledge and skill,
All in all, a good appointment.

Wednesday 4 July 2012

Norwich Pharmacal does not apply to evidence sought in aid of proceedings abroad?

This judgment from the P of the QB (Sir John Thomas) and Burnett J must have HMG rolling in the aisles.  This was a Norwich Pharmacal application from some chaps claiming to have been unlawfully rendered to Uganda with the alleged assistance of MI6.  They wanted any evidence MI6 might have about that alleged involvement to assist them in proceedings before the Constitutional Court of Uganda.  So like Binyam Mohamed, who sought evidence from MI6 to help him to defend himself against criminal charges in the USA, they issued a Norwich Pharmacal application.  Mohamed's case came before Thomas LJ and Lloyd-Jones J and who granted the application subject to PII (that led to another story before the C of A - see here).  Thomas LJ now P of QB seems to have changed his tune.  In Omar it would appear that Thomas or Burnett J or both took a point from the Bench (curious that it never been taken by Lord Sumption (as he is now) in Mohamed or by James Eadie QC (First Treasury Counsel) in Omar) that Norwich Pharmacal is not available where there is a statutory process for a foreign court to seek evidence in the UK - via letters of request.  As a a very junior counsel I used to spend some of my time conducting depositions for Spanish Magistrates before English District Judges where British holiday makers had had car accidents in Marbella etc.  This argument was said to have 2 flaws by the Claimants - which are that letters of request cannot be used to seek national security evidence nor can they be used to seek evidence from a servant of the Crown plus the Claimants told the Court that they would not make such an application in Uganda because of the allegedly corrupt nature of the justice and police system in that country.  Sir John batted away both of these objections - if Parliament had legislated to prevent a foreign court seeking national security evidence from MI6 in the UK then Norwich Pharmacal could not be used to subvert that statute and a UK Court could not go around breaching comity by making findings that judicial and police organs in other sovereign states are corrupt or ineffective.  Therefore, until such time as the C of A or SCUK overturn this judgment, the Admin Court has effectively found a means of ending NP applications relating to national security evidence to be used in foreign proceedings even before Parliament has passed JSB (see here).  As I said at the start - HMG must be cock-a-hoop.  

Sunday 1 July 2012

House of Lords - Why I am anti the Reform Bill....

Have set out my stall before on this issue - there is absolutely no need for more elected whipped politicians - we need more free spirited wise heads - just see the JSB debate for all the evidence you ever need on that topic....and if that were not enough, it seems that the House of Lords is being turned into the House of Regions - have you seen the list of constituencies: in addition to whole constituencies of Wales, Scotland and Northern Ireland (some sort of Euro style devolved federal parliament Bundesrat - which the Lid Dems have always dreamed of....); the rest are random collections of counties, cities and other random districts thrown together  as if they have some affinity (like John Prescott's mental Regional Assemblies) - I am the member for Bedford, Thurrock, Southend and Norfolk and all points in between - is that person really going to represent such a wide disparate range of people and places - and why?  Why do those people need another elected representative alongside their parish, local, county, House of Commons and MEP reps (plus Assembly Member in London).  Absolutely no need for another level of paid representation (particularly in our age of extreme austerity).   I am all for reducing Bishops (this Bill reduces their number), abolishing peerages and having a proper process of appointment of independent members (I favour election of members by the members of the House itself (from nominations from members of the public who are distinguished enough to serve and be elected) with some very modest ministerial/religious appointments thrown in.  But some randomly thrown together regional representatives vying for political power with their more obvious democrats in the Chamber next door!  This is potty and it should be binned.  Come on Clegg - fight Cameron from within  on the economy, not this crazy piece of constitutional tinkering. 

Rant over.

East Midlands

Eastern Bedford
Central Bedfordshire

Greater London

North East
Redcar and Cleveland
Tyne and Wear

North West 
Blackburn with Darwen
Cheshire East
Cheshire West and Chester
Greater Manchester

South East 
Brighton with Hove
East Sussex
Isle of Wight
The Medway Towns
Milton Keynes
West Sussex

South West
Bath and North East Somerset
The City of Bristol
North Somerset
South Gloucestershire
Isles of Scilly

West Midlands 
Telford and Wrekin
West Midlands

Yorkshire and the Humber 
The City of Kingston upon Hull
The East Riding of Yorkshire
North East Lincolnshire
North Lincolnshire
North Yorkshire
South Yorkshire
West Yorkshire