LCJ goes off piste in foray into The Constitution

HMG does not want the public to read letters written to it by the Prince of Wales because in so writing he is practising to be HMK and should be allowed to do so in private.  The Information Commissioner, the First Tier Tribunal and the Upper Tribunal disagreed and ordered disclosure of the letters.  HMG did not appeal to the Court of Appeal or even onwards to the Supreme Court and therefore must have concluded that there is no error of law in the Upper Tribunal's decision (we speculate).  Instead the AG on behalf of HMG has simply vetoed publication.  FOIA permits this (section 53).  HMG does not have the last word because the decision to veto can be judicially reviewed, although ultimately HMG could resist an order setting aside the veto because the High Court cannot commit a Govt Minister to prison (M v Home Office [1993] 3 WLR 433) and lacks any coercive power against the Crown (from whom all coercive power is derived - if the Crown is one singular corporation with many faces then the Warrant of Committal would involve the Crown calling on its Officers and Constables to drag itself to prison).  & why shouldn't HMG have the final word?

The Crown in Parliament is Sovereign and it has handed the final word, to override the judgment of a Tribunal or Court, to the Crown (or more prosaically HMG).  I can't really understand why the LCJ, in his judgment supporting the majority view that the JR against the veto in the Prince of Wales case should be dismissed, gets so anxious about the whole constitutional propriety of section 53 and the veto.  Here are some of the odder passages of the judgment:

Para 2 -  The possibility that a minister of the Crown may lawfully override the decision of a superior court of record involves what appears to be a constitutional aberration.    

Why is it an aberration if it is authorised by Parliament?

Para 8 - Section 53 has been described as an executive override: so it is. Notwithstanding the
unchallenged judgment of the Upper Tribunal, following an examination of the claim
for exemption based on the public interest, a member of the executive is empowered to set aside or nullify the decision. Accordingly, therefore, the disclosure obligation of the relevant public authority based on the decision of the court has been dispensed with by a member of the executive, or the Attorney General acting on behalf of a minister in the previous administration. The identical power is available for use even when the decision to be overridden was made by the Supreme Court of the United Kingdom

What has the Supreme Court got to do with it? It has the same duty as any other Court to comply with legislation as enacted by Parliament - why should its decision carry any more weight in this context than that of a lowly Tribunal Judge - HMG has to obey all Court/Tribunal judgments unless Parliament says otherwise - the Supreme Court has no special status - remember it does not have any special constitutional status such as 'Supreme Courts'  have elsewhere, most notably in the USA.  

Para 10  - We all understand that in our constitutional arrangements Parliament is sovereign. 

Decisions, even of the Supreme Court, may be set aside through the ordinary legislative processes. Thus, in the context of witness anonymity in the criminal courts, the Criminal Evidence (Witness Anonymity) Act 2008 in effect set aside the decision of the House of Lords to the contrary effect in R v Davis [2008] 1 AC 1128. That, however, is not what s.53 provides. It simply vests power in a cabinet minister to override the decision of a court without further recourse to the legislature. It is not quite a pernicious “Henry VIII clause”, which enables a minister to override statute but, unconstrained, it would have the same damaging effect on the rule of law. 

Parliament has authorised HMG to override a Court or Tribunal order without having to go back to Parliament to seek further authority - that is what the democratic legislature has done - why is the Court concerned with the propriety of this?  Then he seriously goes off piste:

Para 11: The provisions of s.53 must therefore be examined with these troublesome concerns in mind. Parliament created a right in members of the public to be granted a great deal of but not all the information held by public authorities. It provided, further, that the decisions of the public authorities adverse to disclosure should be subjected to a number of different methods of independent, and ultimately judicial, examination. Thereafter, on the basis that the final responsibility for deciding the public interest should remain with ministers, they were vested with the power to override the judicial 

decision. If that were the full extent of this legislative structure, then, while recognising that the relevant minister may have a particular insight into and a major contribution to make to the protection of the public interest, I should entertain the very gravest reservations whether this provision could fall within the constitutionality principle. Unconstrained by the internal legislative structure, rather than by  reference to the much vaguer good sense of or wise discretion of any individual minister, we should be addressing a remarkable provision which empowered the minister to set aside the decision of a court after litigation in which the department for which he is responsible was the unsuccessful party. 

12. It is fundamental to the constitutional separation of powers, the independence of the judiciary, and the rule of law itself that, although judicial decisions may be reversed by legislation (but very rarely with retrospective effect) ministers are bound by and cannot override judicial decisions: in our constitution that power is vested in Parliament. If ever the Government or any minister in the Cabinet could, without more, but in particular because of dissatisfaction with a judicial decision, not merely 

ignore it, but nullify it, the elementary entitlement of the citizen to effective recourse to independent courts would be extinguished.

What?  In enacting section 53 FOIA Parliament has authorised  the nullification of a judicial decision  -  the Judges just have to live with it - there is absolutely nothing they can do about it - their strict duty is to apply the law as made by Parliament - even if contrary to the ECHR - which includes any provision which conflicts with EU law - which they can strike down, but only because an Act of Parliament allows them to do so.  Otherwise - Judges must do as Parliament tells them.....whether they like it or not..................The  LCJ  appears to be hinting that if the Judges did not like the look of the veto power, they might declare it unconstitutional at common law and ignore it - NOW THAT WOULD BE A CONSTITUTIONAL ABERRATION.........

Judicial Notices

New Fam D Judge:

The Queen has been pleased to approve the appointment of Anthony Paul Hayden, Esquire, Q.C., to be a Justice of the High Court with effect from 31 July 2013 on the elevation of Mrs. Justice Macur to the Court of Appeal.   The Lord Chief Justice will assign Mr. Hayden to the Family Division. Mr. Hayden, 52, was called to the Bar by the Middle Temple in 1987 and took Silk in 2002. He was appointed a Recorder in 2000 and is approved to sit as a deputy High Court Judge.

Well known family silk from St John's in Manchester....




District Judge Edwina Carole Millward retires from the District Bench with effect from 1 June 2013.District Judge Millward (69) was admitted as a Solicitor in 1972. She was appointed a Deputy District Judge in 1988 and a District Judge in 1995. She was President of the Association of Her Majesty’s District Judges between 2008 and 2009.  One of my favourite DJs - usually to be found at Maidstone - went from domestic science teacher to senior partner and President of the Kent Law Society as well as first female leader of the District Judges nationally.  A joy to appear before and will be sadly missed -always feisty and brilliant at case management....

Missed a couple of High Court Judges...

Two public law appointments on their way to the Admin Court.....

The Queen has been pleased to approve the appointment of Clive Buckland Lewis, Esquire, Q.C., to be a Justice of the High Court with effect from 13 June 2013 on the retirement of Mrs. Justice Dobbs.

The Lord Chief Justice will assign Mr. Lewis to the Queen’s Bench Division.

Mr. Lewis, 52, was called to the Bar by the Middle Temple in 1987 and took Silk in 2006. He was appointed a Recorder in 2003 and is approved to sit as a deputy High Court Judge.

Formerly of 11KBW and First Counsel to the Welsh Assembly Government.  Joins the two Williams JJs as a judge for the devolved principality - WAG will now be looking for a new First Counsel -how about Rhodhri Williams QC?

The Queen has been pleased to approve the appointment of Miss Frances Silvia Patterson, Q.C., to be a Justice of the High Court with effect from 1 October 2013 on the retirement of Mr. Justice Maddison.

The Lord Chief Justice will assign Miss Patterson to the Queen’s Bench Division.

Former Law Commissioner and Public Law QC from Manchester.

CONGRATULATIONS TO THE LAWYERS IN THE HONOURS LIST.......

KCMG

The Honourable Peter Richard Caruana, QC. Politician, barrister and former chief minister, Gibraltar. For services to Gibraltar.

Professor (Arthur) Alan Dashwood, CBE, QC. Emeritus professor, European law, University of Cambridge and professor, City University, London. For services to the development of European law.

Professor William Rodolph Cornish, QC. Emeritus professor of law, University of Cambridge. For services to promoting understanding of British law in central Europe.

Haim Judah Michael Levy, QC. Lawyer and Founder, Gibraltar Community Care Ltd, Gibraltar. For services to the economy and to the community in Gibraltar

CBE

Gareth Evans. Formerly deputy director, public finances and general team, Treasury Solicitor's Department. For services to financial stability. (London)

CB

Mrs Elizabeth Anne Finlay Gardiner. Parliamentary counsel, Cabinet Office. For services to the preparation of legislation. (Bishop's Stortford, Hertfordshire)

Allan Deverell Roberts. Formerly counsel to the chairman of committees, House of Lords. For services to the House of Lords. (London)

MVO

Professor Rodney Brazier. For services to constitutional law.

OBE

Mrs Rhondalee Moreen Braithwaite-Knowles. Deputy attorney general, Turks and Caicos Islands. For services to the development and reform of the public service of the Turks and Caicos Islands.

Suraj Kumar Minocha. Crown advocate, national prosecution team, Crown Prosecution Service. For services to law and order particularly the early guilty plea scheme. (Ridgmont, Bedfordshire)

Mrs Charlotte Anne Triggs. Senior policy adviser, Crown Prosecution Service. For services to law and order especially prosecution of rape cases. (Weston Favell, Northamptonshire)

Victims' Justice

Victims of crimes have rights.  Nothing that appears below is intended to give the impression that I think anything to the contrary.

But we have to recall that Regina does the prosecuting in the UK - not the victim (even a private prosecution is liable to being taken over or terminated by the Crown).  This is because in a civilised society the State does the punishing and not individuals - not vigilantes and not victims. The decision to prosecute must be based on an objective dispassionate assessment and the 'public interest' must be the central guiding light.

Thus formalising a right for victims to seek a review of the decision to prosecute - is to be welcomed (if only to cut the number of JRs) but not at the expense of watering down the central role of the public interest and the fact that the Crown does the prosecuting and not the victim.

A good example of the hierarchy of interests is this judgment from Mitting J where the interests of the victim came third to the interests of the Defendant (presumed innocent until convicted) which came second to the public interest in the due administration of justice.  Magistrates refused an adjournment of a domestic violence case because witnesses did not turn up at the right time due to CPS incompetence.  A prosecution JR failed.  Mitting J noted the outrage of the victim, but further noted that this was not a trump card

2. On any view, the facts of this case do not show the functioning of the criminal justice system in a good light. For reasons which they have explained in correspondence, the alleged victim of the offence and her parents have understandably been outraged by the course events have taken.

This is how the transcript of the judgment ends, the victim's father is addressing the Court directly:

But putting all of that aside, we just have not seen justice and our faith in the justice of this country, it's just evaporated, and so my daughter who was beaten -- I saw her with black eyes, bite marks in her arm, bruises over her body -- this is my daughter. If this has happened to your daughter, how do you think you would feel when these arguments of -- it's just semantics, you know.

41. I know -- I saw my daughter. She's -- you're crucifying her. You are just crucifying her and now we are almost 18 months or 16 months, whatever, beyond the date and she's not got no closure whatsoever knowing that a man has beaten her -- okay, and I know he hasn't been found been guilty -- he hasn't been brought to trial.

42. But she's been beaten. She's scarred. She can't put this behind her and I don't know where to go from here. Do we just lie down and just -- I know today is specifically about -- you know, the hearing here is not about the interested party abusing my daughter, but what I am experiencing isn't justice. I just -- I'm appalled.

43. MR JUSTICE MITTING: I know it will be no comfort to you or your daughter, but I began my judgment by expressing the view that your outrage was both understandable and justified. I am afraid I can do no more about it. I have to deal with the judicial review challenge that has been brought by the prosecution and I have rejected it for the reasons that I have given. I am afraid I cannot put right what has gone wrong.

44. UNKNOWN SPEAKER: So justice hasn't been served.

45. MR JUSTICE MITTING: I agree.

After Jay J, Dingemans J - new High Court Judge announced...

What do you get if you successfully serve as Counsel to a Public Inquiry:

Swift J (Shipman), Christopher Clarke J (Bloody Sunday), Jay J (Leveson) and now Hutton.

Of course they all deserve their elevation for the same reasons as they excelled in their role as Counsel to these Inquiries, still it is an interesting trend...........

Dingemans is a consummate QC of the old School.  A joy to watch in operation -

As the Daily Telegraph once said re Hutton:

Let us be grateful that the Hutton Inquiry is not being televised. Television tarnishes everything it touches. It vulgarises. It overexposes. And it would turn the exquisite James Dingemans QC, the 39-year-old Senior Counsel to the inquiry, into a "media personality". First would come the rent-a-quote legal opinions, then the chat shows, then the pilot for an "upmarket game show" set in a court room.

I suppose the reason that I find Mr Dingemans so impressive is that, having been neither a court reporter nor a villain, I have never had the chance to see a good QC in action before. Perhaps they are all like him. Perhaps they all have his poise, his wit, his beautiful manners. But I doubt it. One of my favourite Dingemans quotes came when John Scarlett, the chairman of the Joint Intelligence Committee, peevishly complained that he never called the dossier a dossier, he called it an "assessment". Dingemans apologised devastatingly: "I am sorry for the loose use of language."

Another reason Mr Dingemans seems so good is that he has been examining people who look so bad, the politicians and journalists who have merged into one pasty-looking, faintly mad professional class. Also, he reminds me of those urbane Army officers who answered impertinent questions from reporters during the war against Saddam. They were articulate and magnanimous and embodied decency and sang froid. They exhibited what the poet Keith Douglas called "that famous unconcern". One, a brigadier I think, had to shout above the whiz bangs and bullets when he referred to the "spot of bother" outside Basra.

Are they a dying breed, these gentleman officers, these silks? They certainly seem a little out of place in our public school-hating society. If Mr Dingemans became a television star there would soon come a backlash. The tabloids would realise that he is everything they despise: that his suits are made in Savile Row, that he is a rugby Blue, that his father is a rear admiral. They would turn him into a national laughing-stock and mock his plummy voice for their sport. James Dingeman's natural home is the courtroom, away from the cameras. It is his context, his battlefield. Long may he remain there.

#saveukjustice

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