The Chilcot Report – an Illegal War?

More than 7 years after Gordon Brown first announced that a public Inquiry would be conducted to identify lessons that could be learned from the Iraq conflict, the Chilcot report was finally published on7 July 2016. However, it was worth the wait. This post does not seek to summarise the report: there are many other good overviews (such as the BBC’s ). The report’s executive summary, in particular the key findings section, is also well worth a read.  The intention is to cover in this and subsequent posts some of the key legal issues raised by the report.  This post considers the relevance of the Chilcot report’s findings to the broader issue of whether Britain’s intervention in Iraq was legal – an issue which was not itself within the remit of the inquiry. Continue reading

Another door closes for the Chagossians

In R (on the application of Bancoult (No 2)) v Secretary of State for Foreign and Commonwealth Affairs  [2016] UKSC 35, the Supreme Court last week dismissed the attempt to set aside the House of Lord’s controversial 2008 decision in R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs (No 2) [2008] UKHL 61. The challenge was grounded in the disclosure of documents in the parallel proceedings of Bancoult No 3 relating to the reliability of a feasibility study into the long term viability of settlement in Chagos Islands.

Read More.

The Chagos Saga

Those who have followed David Hart and Rosalind English’s posts on the long running saga of the Chagossians will be familiar with the extremely unedifying tale of the British Government’s removal and resettlement between 1968 and 1973 of the Chagossians from their homes in the British Indian Ocean Territories in order to enable the construction of the key US base of Diego Garcia. In 2000 the Divisional Court upheld a challenge to the original statutory ordinance prohibiting the Chagossians from entering or being resident in the BIOT on the grounds that the Commissioner for the BIOT’s power to legislate for the peace, order and good government of the BIOT did not include a power to expel its inhabitants. However, following the completion of a feasibility study into the resettlement of the Chagossians a new statutory order was enacted in 2004 again prohibiting them from living in the islands. The 2008 decision rejected a challenge to the rationality, legality and procedural fairness of that order.

The present claim sought to overturn the 2008 decision on the basis that (1) the Foreign Secretary failed in breach of his duty of candour in public law proceedings to disclose relevant documents containing documents that would have been likely to affect the factual basis on which the House of Lords made its decision; and (2) there was new material that undermined that factual basis. Specifically, further documents had been disclosed that cast significant doubt on the conclusions of the feasibility study that any long term resettlement on the Chagos Islands was infeasible except at prohibitive cost. Accordingly, the Claimant would have been in a position to challenge the reliability of those conclusions, it was highly likely that the challenged would have succeeded, and that if the 2008 judgment was set aside, a new hearing would reach a different conclusion.

The judgments

Lord Mance gave the leading judgment for the majority. He began by addressing the alleged breach of duty of candour, and emphasised that a party’s failure to disclose relevant documentary information was clearly capable of subjecting another party to an unfair procedure. However, when considering whether to re-open an appeal it had to be clearly established that a significant injustice had probably occurred and that there was no alternative effective remedy. Similarly, where fresh evidence has been discovered after a judgment that could not be appealed, then there had to be a powerful probability that an erroneous result was reached in the earlier proceedings.

Lord Mance analysed the 2008 judgment and set out citations from it that showed that the conclusions of the feasibility study had been given significant (perhaps even conclusive) weight by the majority. He summarised the issue as to whether it was probable or likely (he did not need to decide which it should be) that the material now available would have led the House of Lords to conclude that it was irrational and unjustified for the Foreign Secretary to accept and act on the feasibility study’s conclusions.

Lord Mance then turned to the feasibility study and to the documents disclosed that shed additional light on the degree to which the content of its ultimate conclusions had been influenced by pressure from the government and/or had not be based on sound science. Lord Mance noted that the critical conclusions had remained unchanged from the draft written by the consultancy who authored the report and the final version produced following comment and input from the FCO.  Accordingly he held that there was no probability, likelihood or even possibility that the court would have seen anything in the new material that would or should have caused the Foreign Sectary to doubt the report’s conclusions, or made it irrational or otherwise unjustifiable to act on them in June 2004. The issue was whether the Foreign Secretary was justified in acting as he did on the material that was or should have been available to him, not whether his decision could be justified on a revisiting of the whole issue of resettlement in the light of any other material which either party could adduce in 2016.

Lord Mance went on to hold that even if the threshold test for setting aside the House of Lords’ decision had been met, it would have been decisive that a new 2015 feasibility study has found that there is scope for settled resettlement. According “in practical terms., the background has shifted, and logically the constitutional ban needs to be revisited… it is open to any Chagossian now or in the future to challenge the future to abrogate the 2004 orders in light of all the information now available.

Lord Kerr’s powerful dissent (with which Baroness Hale agreed) is worth reading. He began by stating that if the decision on the feasibility of resettlement was reached on information that was plainly wrong, or was open to serious challenge, and it was at least distinctly possible that a different decision would have been formed if the full picture had been known, then the rationality of the 2004 Order should be re-examined.

Lord Kerr identified that in light of the Divisional Court holding that the government was no legal obligation to fund a resettlement, the feasibility study’s conclusions had to be capable of sustaining the Foreign Secretary’s decision that the risk of the government coming under pressure to meet the cost of, and to permit the resettlement of the Chagossians was such that they had to refused the right to return to their homes. That was the decision whose rationality was being challenged. Accordingly he held that “any reservations about the veracity of the claims made in the report assume an unmistakable significance. Unless the report was compelling and irrefutable in its conclusions, its capacity to act as the sole justification for the denial of such an important right was, at least, suspect.” Lord Kerr also analysed the study, and the light shed by the new documents on how it had reached its final form. However, unlike Lord Mance, he concluded that there were questions raised about the validity of its conclusions. Therefore it was at least questionable that the majority of the House of Lords would have placed such heavy reliance on its conclusions, and a distinct possibility that there would have been different outcome. The appeal should therefore be re-opened.

The most trenchant part of Lord Kerr’s dissent is his categorical (and in my opinion compelling) argument that there was no possible juridical basis to deny a remedy solely because the Chagossians might be allowed to resettle in entirely different circumstances and for completely different reasons as underlay the original decision.

Where next?

It should be noted that the Supreme Court has given permission to appeal in Bancoult No 3 – in a challenge surrounding whether the Marine Protection Zone created around the Chagos Islands was created for the improper purpose of ensuring that the Chagossians would not be able to return. One day the Chagossians may yet be vindicated in their search for justice.

On another note – for those interested in the duty of candour see also a recent judgment of Sir Kenneth Parker in R (Biffa Waste Management Services Ltd) v the Commissioners for Her Majesty’s Revenue and Customs [2016] EWHC 1444 (Admin).

Get out the back, Jack? make a new plan, Stan?

slammingdoor1… well there aren’t exactly fifty ways to leave the European Union, but from the vociferous debate in legal as well as political circles we might be excused for thinking there are a great deal more. Today’s Times reports that “1,000 people join legal fight against Brexit” to ensure that parliament votes before the government formally triggers the exit procedure from the EU. David Pannick will argue the challenge. But against such a legal heavyweight is former law lord Peter Millett, whose letter published in yesterday’s Times declares that the exercise of our treaty rights is a matter for the executive and the triggering of Article 50 does not require parliamentary approval. So whom are we to believe?

In her guest post Joelle Grogan has speculated upon the possible future for rights in the immediate aftermath of the referendum so I won’t cover the same ground. I will simply draw out some of the questions considered in two reports produced before the result of the referendum was known: 1. House of Lords EU Committee Report (HL138) and the more detailed analysis by Richard Gordon QC and Rowena Moffatt: 2 “Brexit: The Immediate Legal Consequences”.

  1. The House of Lords EU Report

Is Article 50 the only means of leaving the EU?

States have an inherent right to withdraw. It would be inconceivable that the member states of such a close economic arrangement would force an unwilling state to continue to participate. The significance of Article 50 therefore lies not in establishing a right to withdraw but in defining the procedure for doing so. Continue reading

Lights in the Dark: My speech to the Withington Girls’ School’s Model United Nations Conference

IMG_0242I gave the keynote speech at yesterday’s 8th Annual Withington Girls’ School’s  Model United Nations Conference. It was an honour to be asked, especially as it was only a few hundred meters from where I went to school, and also inspiring to see hundreds of young people giving up their Sunday to debate important human rights issues.

In case you are interested, I have reposted the text of my speech below and as a PDF here. It’s a long-read, but in it I work through why I came to human rights as a career choice and why I think they are important.

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Pressing the Red Button on Rights – Joelle Grogan

Article 50 of the Treaty on European Union (TEU) is the red button for the nuclear option of withdrawal from the EU, and in its design, it was never really, truly envisioned to be pressed. Without testing, and without precedent, we are left with no idea of the potential fallout of pressing that red button. Compared to the quasi-constitutionism of Article 2 TEU evoking the values ‘common to the Member States’ of ‘pluralism, non-discrimination, tolerance, justice, solidarity and equality between men and women’; or the brutal legalism of Title VII of the Treaty of the Functioning of the European Union (TFEU) on competition, tax and the approximation of laws; Article 50 TEU is anaemic. It is, essentially, a button triggering a countdown clock, which is on a comparable level of advancement to the 1980s floppy disk.

The two-year countdown

Triggering Article 50 TEU will begin a two-year countdown to the end of UK Membership of the Union. Within that two-year period an agreement determining the withdrawal arrangements and the future relationship with the Union must be made. Barring a unanimous decision to extend the period, at the end of two years from the point of notification, the UK will no longer be a Member. The Treaties, and all rights and duties therein, cease to apply.

But now, as the British political establishment play a game of “pass the red button”, we are faced with some confounding, and concerning questions from a rights’ perspective. Likely to be lost in the two-year scramble for a political and trade agreement between the UK and EU, which will attempt at all costs to avoid the fall-back position of the application of WTO trade rules, are the very rights and values held as common between the (ex-)Member State(s). During that two-year period, EU law and (pertinently) EU rights will continue to apply in the UK. Free movement will still be (from a legal perspective) free, and claimants may still rely on their EU rights in the Courts. But then what? What happens when the clock strikes zero? Continue reading

Book Review – Marshall Hall: A Law Unto Himself by Sally Smith

Marshall-Hall-biog

Owain Thomas QC reviews this new book by 1 Crown Office Row’s own Sally Smith QC.

Sally Smith’s wonderful new biography of the great Edwardian advocate Edward Marshall Hall is the first reappraisal of his life and career since the celebrated biography by Marjoribanks, published only two years after his death. Since then the worlds of law, journalism, celebrity, and crime have become intertwined in so many complex ways, but Smith charts in this book the quite remarkable public life of the era’s most sought after barrister. He attained celebrity beyond the dreams of even the most fervent publicity hungry barrister. His cases were regularly front page news. Because of the deliciously lurid subject matter some might have got there anyway, but his name added a lustre and whetted the public appetite for the scandal to come with the promise of a coup de théâtre. Thousands waited for the verdicts outside the Old Bailey. Continue reading

Strasbourg Court rules on “excessive” length of Scottish criminal proceedings

Photo credit: The Guardian

O’Neill and Lauchlan v. United Kingdom, nos. 41516/10 and 75702/13, 28 June 2016 – read judgment.

The European Court of Human Rights has ruled that criminal proceedings concerning two Scottish individuals ran beyond the “reasonable” period of time permitted under Article 6, ECHR. Despite considering that the individual stages of the proceedings were all reasonable in length, the cumulative time was excessive and in violation of Article 6(1).

Background

In August 1998, the applicants were sentenced to periods of imprisonment of eight and six years following convictions for various sex offences. During their incarceration, the police wished to question the applicants about the disappearance, and suspected murder, of their ex-housemate (AM) after she had been reported missing six months earlier. On 17 September 1998 the applicants were detained by police and interviewed separately for over five hours. During these interviews they were directly accused of the murder of AM but, subsequently, neither applicant was arrested or formally charged.

Following release from prison, and subsequent re-arrest and recall to prison due to the apparent abduction of a fourteen year old boy, the applicants were again convicted of various sex offences and sentenced to a further three years in prison. During this period of incarceration the applicants were also placed on petition in relation to the murder of AM in early April 2005. Formal charges were brought on 5 April 2005 whilst the police continued with their investigations. However, in late 2005, Crown Counsel raised concerns about the sufficiency of evidence. Accordingly, a decision to take “no proceedings meantime” was made in December 2005 and subjected to continuous review as investigations continued. Continue reading