Thursday 28 March 2013


2 for family, 1 for IP, 1 for common law, 1 for commercial, 1 for human rights, 2 for Chancery, 1 for defamation and 1 for employment.  
These appointments are required in the light of the elevation of Sir Terence Etherton, Sir Roger Toulson and Sir Anthony Hughes, the retirements of Sir Alan Ward and Sir Malcolm Pill, and the forthcoming retirements of Lord Judge, Sir Bernard Rix, Sir Mathew Thorpe, Sir John Mummery and Sir Timothy Lloyd.
Mr Justice Briggs
Called to the Bar at Lincoln’s Inn in 1978 and was Junior Counsel to Crown Chancery from 1990-94. He became a Queen’s Counsel in 1994. He was made a Bencher of Lincoln’s Inn in 2001, and was appointed Attorney General of the Duchy of Lancaster on 24 July 2001. He held this post until shortly after his appointment on 3 July 2006 as a Justice of the High Court, when he was assigned to the Chancery Division. He is currently Vice-Chancellor of the County Palatine of Lancaster, a Chancery judge appointed by the Chancellor of the Duchy of Lancaster in consultation with the Lord Chancellor, to supervise Chancery business and hear cases on the North and North Eastern Circuits.

Mr Justice Christopher Clarke

Called to the Bar, Middle Temple, in 1969, Bencher 1991; Attorney of Supreme Court of Turks and Caicos Islands, 1975. He was appointed Queen’s Counsel in 1984; a Recorder, 1990–2004; a Deputy High Court Judge, 1993–2004; a Judge of the Courts of Appeal of Jersey and Guernsey, 1998–2004. Counsel to the Bloody Sunday Inquiry, 1998–2004. Councillor, International Bar Association, 1988–90; Chairman, Commercial Bar Association, 1993–95; Member, Bar Council, 1993–99. FRSA 1995. He was appointed a Judge of the High Court of Justice, Queen’s Bench Division, on 11 January 2005.

Mr Justice Floyd

Called to the Bar, Inner Temple, 1975, Bencher, 2001; called to the Bar of Republic of Ireland, 1988. He was appointed Queen’s Counsel in 1992; Assistant Recorder, 1994–2000; a Deputy High Court Judge (Patents Court), 1998–2007; a Recorder, 2000–07. He was appointed Deputy Chairman, Copyright Tribunal, 1995–2007; Chairman, Competition Appeal Tribunal, 2007–. Member: Bar Council Chairman’ Arbitration/Conciliation Panel, 1996–2007; Bar Council Professional Conduct and Complaints Committee, 1998–2002; Bar Council, 2000–04; Bar Council European Committee, 2003–04; Litigation Accreditation Board Appeal Panel, Chartered Institute Patent Attorneys, 2005–07; Enlarged Board of Appeal, European Patent Office, 2011–; Chairman, Intellectual Property Bar Association, 1999–2004. He was appointed a Judge of the High Court of Justice, Chancery Division on 8 November 2007. He has been the Senior Judge, Patents Court, since 2011.

Mr Justice Fulford

Housing Advisor, Shelter’s Housing Aid Centre, 1974–75; called to the Bar, Middle Temple, 1978, Bencher, 2002. He was appointed Queen’s Counsel in 1994; a Recorder, 2001–02. Editor, UK Human Rights Reports, 2000–2010 Hon. DLaws Southampton, 2011. He was appointed a Judge of the High Court, Queen’s Bench Division, on 22 November 2002. He was a Judge of the International Criminal Court, The Hague, from 2003-2012 (President, Trial Division, 2008–12; Presiding Judge, Trial Chamber I, 2007–12). He is currently the Lead Presiding Judge, South Eastern Circuit.

Mrs Justice Gloster

Graduated from Girton College, Cambridge. She was called to the Bar, Inner Temple, 1971, Bencher 1992. She was appointed Queen’s Counsel in 1989; a Judge of the Courts of Appeal of Jersey and Guernsey, 1993–2004; a Recorder, 1995–2004; Judge in Charge of Commercial Court, 2010–12. Mem., panel of Counsel who appear for DTI in company matters, 1982–89. Mem. Hon. Fellow, Harris Manchester College, Oxford, 2006. She was appointed a Judge of the High Court of Justice, Queen’s Bench Division (Commercial Court) on 21 April 2004. Hon. Fellow, Girton College, Cambridge, 2011.

Mrs Justice Macur

Called to the Bar, Lincoln’s Inn, 1979 (Bencher, 2005); Midland and Oxford Circuit. She was appointed Queen’s Counsel in 1998; a Recorder, 1999-2005. She was appointed a Judge of the High Court of Justice, Family Division, on 3 October 2005. She was Family Liaison Judge for the South Eastern Circuit from 2007 until she was appointed Presiding Judge on the Midland Circuit, 2008-11.

Mr Justice Ryder

Merchant banker, Grindley Brandt & Co., 1979; called to the Bar, Gray’s Inn, 1981; QC 1997; Asst Recorder, 1997–2000; a Recorder, 2000–04; a Dep. High Court Judge, 2001–04; Northern Circuit. Counsel, N Wales Tribunal of Inquiry, 1996–99. Asst Boundary Comr, 2000–04. Commnd Duke of Lancaster’s Own Yeomanry, 1981; Sqdn Leader, 1990; Sqdn Leader, Royal Mercian and Lancastrian Yeomanry, 1992. Awarded TD. 1994 DL Greater Manchester, 2009. FRSA 2010. He was appointed a Judge of the High Court of Justice, Family Division, on 4 May 2004. He was a Family Division Liaison Judge for the Northern Circuit until he became Presider Judge, Northern Circuit, in 2010. He has been Judge in Charge of Modernisation of Family Justice, since 2011

Mrs Justice Sharp

Called to the Bar, Inner Temple, 1979, Bencher 2009. She was appointed Queen’s Counsel in 2001 and a Recorder in 1998. She was appointed a Judge of the High Court of Justice, Queen’s Bench Division on 13 January 2009. She has been a Presiding Judge on the Western Circuit since 2012.

Mr Justice Underhill

Called to the Bar, Gray’s Inn, 1976 (Bencher 2000). He was appointed Queen’s Counsel in 1992 and was a Recorder 1994-2006; Attorney General to HRH the Prince of Wales 1998-2006; a Deputy High Court Judge 1998-2006; and a Judge of the Employment Appeal Tribunal, 2000-03. He was Chairman of the Bar Pro Bono Unit 2002-05. Appointed a Judge of the High Court of Justice, Queen’s Bench Division, on 30 January 2006. He has been a Judge of the Employment Appeal Tribunal since 2006 and was its President 2009-11.

Mr Justice Vos

Called to the Bar, Inner Temple, 1977; Bencher, Lincoln’s Inn, 2000. He was appointed Queen’s Counsel in 1993; a Judge of Courts of Appeal of Jersey and Guernsey, 2005-09; Judge of the Court of Appeal of Cayman Islands, 2008-09. Chairman Chancery Bar Association, 1999-2001 (Honorary Secretary, 1994-97; Vice-Chairman, 1997-99). Chairman Bar Council, 2007 (Vice Chairman 2006, Chairman Professional Standards Committee 2004-05; Member, General Management Committee, 2004-07). Member, Panel on Fair Access to the Professions, 2009. Trustee: Social Mobility Foundation, 2007-11 (Chairman, 2008-11); Slynn Foundation, 2009 to date. He was appointed a Judge of the High Court of Justice, Chancery Division on 27 October 2009 and is currently a Nominated Judge of the Patents Court

Wednesday 27 March 2013


It is being reported that the Lords failed to disturb the Commons' amendments to JSB last night such that the Bill should be on its way to Royal Assent soon.

I am dismayed by the continuation of the confusion between PII and CMPs.  PII keeps evidence out whilst CMPs keeps evidence in.  PII is about preventing the Court from receiving evidence on the grounds of national security.  CMPs are about facilitating classified evidence being put before the Court. The cost of achieving that end is that one side does not see the evidence.  That cost is high and it makes the average lawyer feel a bit sick.  
But nobody has come up with a better solution, and so it must be. I cannot put it better than Simon Brown did in the House last night:

Lord Brown Eaton-under-Heywood - former Lord of Appeal in Ordinary and until 9th April 2012, Justice of the Supreme Court:

The principle of open justice is, as we all acknowledge, of the highest constitutional importance. It is rightly regarded as lying at the very heart of the object of fair trials. Ordinarily, closed procedures-or, as colloquially known, secret hearings-are simply not to be countenanced. There are those who argue that nothing-no countervailing interest whatever-can ever justify any encroachment upon that prized, sacrosanct principle. The noble Baroness, Lady Kennedy of the Shaws, said this on Report. Dinah Rose and Philippe Sands, both distinguished Silks, said it recently when they resigned from the Liberal Democrats at their spring conference. Shami Chakrabarti, the director of Liberty, said it three weeks ago at Lincoln's Inn in a debate with Ken Clarke, which I attended. I have the greatest respect for all of these, but I am convinced that in the tiny minority of cases which have been identified by David Anderson, the independent reviewer of terrorism legislation, as cases to which this legislation will apply such an absolutist approach is wrong. The apparent purity of this approach must yield to the imperative needs of national security. The absolutists contend that, where national security precludes the Crown from disclosing the documents that are needed for the defence, the Crown must simply pay up. In a judgment in a case called Tariq, which we heard together with the Al Rawi Guantanamo cases, I described that contention as "wholly preposterous". I stand by that and that is now the view of the majority of both Houses.

Friday 22 March 2013

Supreme Court has duty to hold secret hearings...

Apparently there has been some controversy about whether the Supreme Court should be sitting in private to consider an appeal against a judgment of the Court of Appeal which considered a first instance judgment of Mitting J which was handed down partly by way of a closed judgment.

What's to consider?  The Supreme Court has a statutory duty to hear civil appeals from the Court of Appeal, Civil Division, where it or the Court below has granted permission to appeal:

Section 40(2) Constitutional Reform Act 2005:

An appeal lies to the Court from any order or judgment of the Court of Appeal in England and Wales in civil proceedings.
The Court would breach its statutory duty to hear appeals from the Court of Appeal if it refused to consider a closed judgment given by a lower Court which was integral to the consideration of that appeal.      There can be no other answer and it is not controversial.  Parliament has made provision for closed hearings and closed judgments (Chap 2 Part 6, Counter-Terrorism At 2008).  The Supreme Court is a slave to Parliament and cannot ride above Parliament's will.

I can't understand the Court's reluctance to do its duty.  Lord Neuberger's statement is below - the only relevant bit is highlighted.  The Supreme Court is special, no doubt, but until its constitutional position is changed, it has to do as it is told by Parliament.

Lord Neuberger, President of the Supreme Court, made the following statement in open court this afternoon:

“Yesterday morning, having heard full argument on the issue the previous day, we decided, for reasons to be given later - and, it should be added, by a majority of six to three - that we had power to consider the closed judgment of Mr Justice Mitting (“the closed judgment”) in this case. This would involve part of this hearing being conducted in private without Bank Mellat or its representatives being present. We also indicated that, on the basis of the arguments we had so far heard, we were not persuaded that it was necessary to take such a course.

“The substantive appeal concerns the validity of an order made by the Treasury in 2009, which significantly and detrimentally affected the Bank’s business. We have also heard the whole of the Bank’s argument and certain interested parties and in response from the Treasury on the substantive appeal. The Treasury now applies for us to look at, and hear brief submissions on, the closed judgment of Mr Justice Mitting on the basis that we cannot be wholly confident of disposing of the bank’s appeal justly without considering the closed judgment. We are very dubious indeed whether this will turn out to be the case and we are also sceptical whether as full an open gist of the judgment has been provided as should have been possible. However, an incidental vice of the closed material procedure is that unless and until an appellate court sees the judgment it often cannot be sure its contents will be irrelevant or that its contents have been fully gisted.

“The closed judgment is, we have been told, much briefer than the main open judgment of Mitting J, but it may just conceivably contain relevant material for the purpose of disposing of this appeal. It is closed because it contains material which he decided should not be made public on the grounds of public interest and national security. We have reluctantly decided that we cannot consider the closed judgment without having a closed hearing, as otherwise the contents of the closed judgment would be revealed to the public, including Bank Mellat and its representatives.

“It must be emphasised that this is a decision which is reached with great reluctance by all members of the court; indeed it is a majority decision. No judge can face with equanimity the prospect of a hearing, or any part of a hearing, which is not only in private, but involves one of the parties not being present or represented at the hearing and not even knowing what is said either at the hearing or in a judgment in so far as it discusses what was said or produced by way of evidence at the closed hearing. Nonetheless, as Parliament has decided that, in certain circumstances, such a procedure is necessary and permissible in a trial before a Judge, we have concluded that, on an appeal from a decision in a case where a Judge has considered closed material and given a closed judgment, it may be necessary for this court to go into closed session in order to dispose of the appeal justly.

“We emphasise that (i) this is course which is to be taken only where the court is satisfied that it is absolutely necessary to dispose of the appeal justly, (ii) the party who is excluded, in this case Bank Mellat should be given as much information as possible about the content of the evidence and arguments presented at any closed hearing and the contents of any closed judgment, (iii) the interests of that party should be protected as far as possible by the full involvement of special advocates at the closed hearing, and (iv) when we give our judgment, we will try to avoid placing any reliance on the closed material, and, in so far as it is necessary to do so, to keep any reliance to a minimum and give as much detail about that material to Bank Mellat and the public as we properly can."

Wednesday 20 March 2013

Draft Press Regulation Royal Charter not worth vellum it will be printed on

Clause 9 of proposed Royal Charter for Self-Regulation of the Press:

(it is very British for us to regulate the Press in 2013 using a medieval power, medieval language in a medieval instrument:
NOW KNOW YE that We by Our Prerogative Royal of Our especial grace, certain knowledge and mere motion do by this Our Charter for Us, Our Heirs and Successors will, ordain and declare as follows:):

9.1. A provision of this Charter may be added to, supplemented, varied or omitted (in whole or in part) if, and only if the requirements of Article 9.2 are met.
9.2. Before any proposal (made by any person) to add to, supplement, vary or omit (in whole or in part) a provision of this Charter (“proposed change”) can take effect a draft of the proposed change must have been laid before Parliament, and approved by a resolution of each House. For this purpose “approved” means that at least two thirds of the members of the House in question who vote on the motion do so in support of it.
9.3. The Recognition Panel may only propose a change to the terms of this Charter if a resolution has been passed unanimously by all of the Members of the Board, who shall determine the matter at a meeting duly convened for that purpose.
9.4. The provisions of Article 9.2 do not apply to a proposed change to the Charter that is required merely to correct a clerical or typographical error.
9.5. Provided the terms of Article 9.2 have been met, any such addition, supplement, variation or omission shall, when approved by Us, Our Heirs or Successors in Council, become effective so that this Charter shall thenceforth continue and operate as though it had been originally granted and made accordingly.

Dicey (see last post)

Parliament means, in the mouth of a lawyer (though the word has often a different sense in conversation) The King, the House of Lords, and the House of Commons: these three bodies acting together may be aptly described as the "King in Parliament", and constitute Parliament. The principle of Parliamentary sovereignty mean neither more nor less than this, namely that Parliament thus defined has, under the English constitution, the right to make or unmake any law whatever: and, further, that no person or body is recognised by the law of England as having a right to override or set aside the legislation of Parliament.—A.V. Dicey Introduction to the Study of the Law of the Constitution (1885)

Royal Charter on Self-Regulation of the Press (Amendment) Act 2016, passed by a simple majority of both Houses of Parliament in Ye Olde Fashion:

Section 1: "Clause 9 of the Charter shall have no effect"
Section 2: "The Charter shall be amended in accordance with Schedule 1"

Oh dear.........

Tuesday 19 March 2013

You can't entrench Press Regulation law...

Many moons ago I learnt my constitutional law from an expert in the field who told me that you can't entrench an Act of Parliament, because the Act which requires a 2/3 majority in order to be amended can be repealed by a further Act -which only needs to 50% majority: No Parliament can bind its successor:

Parliament means, in the mouth of a lawyer (though the word has often a different sense in conversation) The King, the House of Lords, and the House of Commons: these three bodies acting together may be aptly described as the "King in Parliament", and constitute Parliament. The principle of Parliamentary sovereignty mean neither more nor less than this, namely that Parliament thus defined has, under the English constitution, the right to make or unmake any law whatever: and, further, that no person or body is recognised by the law of England as having a right to override or set aside the legislation of Parliament.
A.V. Dicey Introduction to the Study of the Law of the Constitution (1885)

  That fundamental principle appears to have been lost in the recent all parties agreement to regulate the press by a Royal Charter which will require a 2/3 Parliamentary majority to be amended; or a 1/2 majority to repeal what will be section 92 Enterprise and Regulatory Reform Act.....Entrenched, it isn't....

Friday 15 March 2013

Justice and Security Bill - what have the Commons been up to?

JSB has cleared the Commons and will now ping pong back to the Lords - the first ping pong sitting is on 26th March.

The Commons have introduced the following major amendments to the Bill, in so far as CMPs are concerned, which they received from the Lords:

1. CMP declarations, in the Bill received from the Lords, could be made where there would be harm to national security caused by disclosure.  The Commons have added to that an alternative condition that disclosure of the material cannot be made because of PII grounds (which are wider than national security - most particularly harm to diplomatic relations) or because the party chose not to rely on the material or because section 17 RIPA prevents disclosure (intercept evidence) or because any other enactment prevents disclosure.  Hence the circumstances in which a CMP declaration may be made have been widened.

2.The Lords Bill required the Secretary of State to consider claiming PII as an alternative to seeking a CMP declaration but the Commons Bill has beefed this up such that the Court must be satisfied that the Secretary of State has carried out that consideration.

3.The Commons have added a new clause (after number 6) to require the Court to keep the CMP declaration under review, particularly after disclosure.  There is a power to revoke on the application of any party or on the Court's own motion.  Clearly this is designed to keep the Secretary of State on her toes, to make such that a CMP is still required after a review of the documents which have been disclosed.

4.The Commons have added new clauses (after 10) requiring reports on the use of the CMPs every 12 months and a review every 5 years.

Otherwise, the Bill remains, as far as CMPs are concerned, as was delivered from the Lords to the Commons.

Let ping pong begin.

Interestingly, a Labour MP, Paul Coggins tried to insert an amendment to permit CMPs to be available to inquests held by the Chief Coroner or a High Court Judge.  This would have been a good development, as several high profile inquests have suffered from the lack of CMPs (7/7 and most latterly Litvinenko, where Owen J is to consider a PII application, which if granted will keep evidence out of the inquest - unlike a CMP which would permit it to be examined in controlled and safe conditions).  The debate (set out below) on this amendment is interesting - as clearly HMG wished to include Coroners but have bowed to pressure.....

Amendment 70, page 6, line 22, at end insert—
‘or proceedings at an inquest conducted by the Chief Coroner or a High Court judge.’.
Paul Goggins: My hon. Friend knows me well enough to know that I do not dismiss critics of the Bill. I listen to them carefully; I just happen to disagree with them. The same applies to my hon. Friend: I listen carefully to what he says on this issue. Sometimes we agree and sometimes we disagree, and I sense that we will disagree on this. I am making a plea for further attempts to achieve consensus, but I am making it clear that if there is no consensus then I think that my right hon. Friend the Member for Tooting is setting the bar too high.

On inquests, I am sorry that the Minister did not take an intervention from me earlier. I would be delighted to take an intervention from him at any stage in the next couple of minutes. I am grateful to Members who supported my amendment 70, which would make closed material proceedings available for inquests as well as civil proceedings. We just need an explanation from the Minister on why the Bill proposes CMPs for civil cases, but does not propose them for inquests. That was in the original plan. He knows that senior members of the Government and senior judges think it is nonsense and inconsistent to have one and not the other.
Mr Kenneth Clarke: I think we have had this exchange before. The explanation is simple. The Government were faced, in Parliament and from all the lobbies, with overwhelming opposition to extending CMPs to inquests. We have said throughout today’s proceedings that we have been trying to concede as far as possible, and that if people did not want to trust coroners with these powers and the ability to take into account this information, 
4 Mar 2013 : Column 740
we decided it was impossible to maintain it, particularly after recent controversy regarding coroners and inquests. All kinds of unlikely organisations were seen to be believing that we were closing down inquests, getting rid of juries and so on, so I am afraid that we took the line of least resistance. The result is that total secrecy and silence will continue to be the case in inquests whenever national security is involved.
Paul Goggins: The purpose of tabling amendment 70 —again, I am grateful for the support of hon. Members—was not that I thought I would win the day. Clearly, the Minister is not going to support it. I tabled the amendment to encourage him, the Under-Secretary of State for the Home Department, the hon. Member for Old Bexley and Sidcup (James Brokenshire) who is sitting next to him and anybody else who is listening. This issue will come back and either his Government or preferably a Government that I support, will have to deal with it.
Mr Straw: I am sure that my right hon. Friend is aware that the idea of having closed material proceedings was not just the policy of the previous Labour Government. Proposals were introduced in legislation, but sadly blocked in the other place.
7.15 pm
Paul Goggins: My right hon. Friend is absolutely right. If CMPs are to be available in civil proceedings, they should certainly be available in inquests. There are difficulties concerning families and bereaved relatives, but in the end this about a search for the truth. If there is information and intelligence that reveals the cause of a death, the coroner should know it, even if it has to be kept as secret intelligence.
The Minister himself made the perfect argument today. He went on the radio at lunchtime and made the argument about the limitations of having to have just PII, rather than CMPs. What was the example he gave? The Litvinenko inquest. There are more than 30 historic inquests in Northern Ireland waiting to be resolved. Whether the deaths involved the Army or the police, all of those issues will be there. There will other inquests in future that will bring national security issues into play.
Mr Kenneth Clarke: The right hon. Gentleman has been very patient in listening to the whole debate. All the people who are more liberal than we are and who are denouncing CMPs, are defending the existing law. What is at the moment in controversy at the Litvinenko inquest, is that what they are saying is superior to admitting the evidence and having it heard and determined by the judge. One has to bring in the present inquests or inquests will never have this material, because such a fantastic volume of opposition was excited by the proposal when we first put it forward.
Paul Goggins: I accept that the Minister felt under enormous pressure to make that concession. Anybody who doubts the minds of coroners and senior judges in relation to the test that will be applied need only look at the coroner in the Litvinenko inquest, Sir Robert Owen, and the comments he made last week. He said clearly:
“I intend to conduct this inquest with the greatest degree of openness and transparency”—
4 Mar 2013 : Column 741
and that he would give the Foreign Secretary’s request for a PII certificate—
“the most stringent and critical examination”.
We ought to trust the coroner and the judges.
In the end, the search for justice is a search for the truth. A secret court is one where information and intelligence is either not considered at all, or where the Government and their agencies cave in and make a settlement where no case has been heard—that is secret justice. Closed material proceedings are not perfection, but we are not dealing with perfection; we are dealing with a difficult issue in a small number of cases. However, we are more likely to get closer to the truth if the judge has seen the relevant information than if nobody has seen it at all.

Tuesday 12 March 2013

That's more like it....

For some time I have been concerned about Employment Tribunals requiring employers to provide disciplinary processes which are more akin to judicial proceedings.  I have faced one Tribunal demanding to know why the person who heard the internal appeal was not "independent and impartial" and seemed not to understand that an internal appeal is 'internal' and must always be conducted by a partial and biased member of management.  The Tribunal seemed astounded by such a notion.  The Baby P social workers were disciplined once with a warning and then again with dismissal.  They claimed that res judicata and abuse of the process prohibited being disciplined twice for the same matter.  The Court of Appeal has properly rejected any attempt to import judicial concepts into employment disciplinary proceedings (Christou and another v LB of Haringey) Lord Justice Elias (for P of the EAT):

  1. In the employment context the disciplinary power is conferred on the employer by reason of the hierarchical nature of the relationship. The purpose of the procedures is not to allow a body independent of the parties to determine a dispute between them. Typically it is to enable the employer to inform himself whether the employee has acted in breach of contract or in some other inappropriate way and if so, to determine how that should affect future relations between them. It is true that sometimes (but by no means always) the procedures will have been contractually agreed, but that does not in my judgment alter their basic function or purpose. The employer has a duty to act fairly and procedures are designed to achieve that objective. The degree of formality of these procedures will vary enormously from employer to employer. But even where they provide panoply of safeguards of a kind typically found in adjudicative bodies, as is sometimes the case in the public sector in particular, that does not alter their basic function. It is far removed from the process of litigation or adjudication, which is in essence where this doctrine bites.
Quite right too - will be citing this next time a Tribunal gets confused between their role and the role of the employer.....