Under that provision, he issued a certificate which effectively vetoed a decision of the Upper Tribunal that a number of items of correspondence sent by Prince Charles to seven Government Departments (characterised as “advocacy correspondence” as opposed to personal letters) had to be disclosed to Mr Rob Evans of the Guardian newspaper.
Let’s apply some hard history to the 13th century charter governing the obligations flowing between King John and his barons, or at least read the thing (translation here). So says Lord Sumption in a fascinating address to Friends of the British Library on 9 March.
All sides jockey for position at the Magna Carta shrine, but its significance is entirely due to the myth-making tendencies of the seventeenth century politician and judge Edward Coke. Since he plucked the charter quite clean of its historical context, the claims made in its name are extraordinary and downright self-serving:
In his column in the Daily Telegraph, Peter Oborne recently described the European Convention on Human Rights as a “document which entrenches the principles of Magna Carta in international law.” Others have come forward to suggest that the partial abrogation in 2014 of a legal aid system which was first created in 1949 was contrary to Magna Carta. Recently, a Global Law Summit in London, which was essentially an international marketing opportunity for British lawyers, described itself on its website as “grounding the legacy and values of Magna Carta in a firmly 21st Century context.
Sumption is not against liberty of the subject, nor motherhood and apple pie, nor even international marketing opportunities for lawyers, but he does have a problem with “the distortion of history to serve an essentially modern political agenda.” Continue reading →
The Plantagenet Alliance Ltd (R o.t.a) v. Secretary of State for Justice and others  EWHC 1662 (QB) 23 May 2014 – read judgment
Some 527 years after his death, Richard III’s skeleton was found beneath a car park in Leicester. The Plantagenet Alliance, a campaigning organisation representing a group of collateral descendants, sought judicial review of the decision taken by the Secretary of State to exhume and re-inter the monarch in Leicester Cathedral without consulting them and a wide audience.
The case had become a bit of a stalking horse for Lord Chancellor Grayling’s plans to reform judicial review: see my post here. Grayling may have backed off for the moment from his specific plans to reform standing rules, though he still has it in for campaigning bodies participating in judicial reviews. As we will see, counsel for MoJ had a go at saying that the Alliance had no standing, but to no avail.
But MoJ had better points, and was successful overall. And this is the moral of the story. You cannot sensibly justify the bringing of entirely meritless judicial review. But it is wrong to seek to defeat a meritorious claim by relying on standing points, without considering the public interest of the underlying case. As I pointed out in my post, the irony of the cases chosen by MoJ last year to make its case that the standing rules were all very awful were ones where government had been behaving unlawfully.
The Plantagenet Alliance Ltd (R o.t.a) v. Secretary of State for Justice and others  EWHC 1662 (QB) 23 May 2014 – read judgment
The facts of this application for judicial review were set out in David Hart QC’s post on the original permission hearing. To recap briefly, the Plantagenet Alliance, a campaigning organisation representing a group of collateral descendants of Richard III were given the go ahead to seek judicial review of the decision taken by the respondents – the Secretary of State, Leicester Council and Leicester University, regarding his re-interment at Leicester Cathedral without consulting them. More specifically, the claimant’s main case was that there was an obligation, principally on the part of the Ministry of Justice, to revisit or reconsider the licence once the remains had been conclusively identified as those of Richard III.
The Divisional Court (of three judges) unanimously rejected this argument on all grounds. It could not be said in public law terms that the Secretary of State failed to act as a reasonable or rational decision-maker when deciding not to revisit the exhumation licence in the light of the information which he already had. The Court hammered the final nail on the consultation coffin by declaring that there was
no sensible basis for imposing a requirement for a general public consultation, with leaflets, on-line petitions, publicity campaigns, nor for advertisements trying to ascertain who is a relative and then weighing their views against the general public, when there are, in reality, only two possible contenders (Leicester and York)
A short summary of the decision in Bancoult follows.
R (o.t.a Rob Evans) v. Attorney-General, Information Commissioner Interested Party, 12 March 2014 – read judgment
The Court of Appeal (reversing a strong court including the former Lord Chief Justice – see my previous post) has decided that correspondence between the Prince of Wales and various government departments should be released. A Guardian journalist had made a request under the Freedom of Information Act and the Environmental Information Regulations to see these documents. The Upper Tribunal had agreed that they should be disclosed.
At that point, the Attorney-General intervened and signed a certificate saying “no”.
The Plantagenet Alliance Ltd (R o.t.a) v. Secretary of State for Justice and others, Haddon-Cave J, 18 October 2013 (PCO) read judgment, and on permission, 15 August 2013 read judgment
I posted here on the original judgment giving the Plantagenet Alliance permission to seek judicial review of the Secretary of State’s decision to re-bury Richard III in Leicester. At the time, the judge had made a full Protective Costs Order in favour of the Alliance, so that it would not have to pay costs if it lost. The judge had also ordered what he envisaged to be a short hearing to determine in what sum the Alliance’s costs should be capped. if it won.
The judge was then somewhat surprised to be faced by a full-blown attempt by MoJ (Chris Grayling) to discharge the PCO, and seek an order for security of costs against the Alliance. The written argument in support was signed by the top barrister doing work for the Government, and the hearing about it took a day (think of the costs of that).
The application was conspicuously unsuccessful, as we shall see, but what was all this about? Something to do with proposed judicial review changes, I suspect – for reasons which will become evident.
The Plantagenet Alliance Ltd (R o.t.a) v. Secretary of State for Justice and others, Haddon-Cave J, 15 August 2013 read judgment
I spent long hot summers in the 1970s digging up the remains of Saxons and prehistoric Greeks. In Greece, skeletons were good time-consuming cannon-fodder for incompetent interns, whilst real archaeologists got on with the serious stuff of looking for walls and post-holes. So I can understand the impulse which took the Plantagenet Alliance to court about the bones of Richard III with its diagnostic severe scoliosis.
The judge gave the Allliance permission to seek judicial review of the Secretary of State’s decision about re-burial. But I question the result – does the Alliance really have a legal right to be consulted about where Richard III is to be re-buried?
R (o.t.a Rob Evans) v. Attorney-General, Information Commissioner Interested Party, 9 July 2013 – read judgment
As we all know, the Prince of Wales has his own opinions. And he has shared those opinions with various government departments. Our claimant, a Guardian journalist, thought it would be interesting and important for the rest of us to see those opinions. So he made a request under the Freedom of Information Act and the Environmental Information Regulations to see these documents.
No joy, says the Administrative Court. Yes, a tribunal had ordered production of the letters, but that order had been overridden by the Attorney-General. What, says anybody used to the idea that courts do their bit, and the government does its bit – that’s unfair, government cannot override what the courts say.
The complication, as we shall see, is that the override is built into FOIA.
Litigation relating to information rights can sometimes seem very dry and obscure, entailing lengthy analysis of the merits of public authorities disclosing or withholding information which is highly specialised or obtuse, and of little real interest to the general population. But this case – the case of the “Black Spider Letters” – really is a fascinating one, involving an examination not just of the legislative provisions relating to the disclosure of information, but also a consideration of the existence and extent of constitutional conventions pertaining to the role of the monarchy in government. At the same time, it has the potential to generate such controversy as to make for perfect tabloid fodder. It has been the subject of international news coverage. And it’s not over yet.
It all stems from a request for information made under the Freedom of Information Act 2000 (“the Act”) and the Environmental Information Regulations 2004 (“the Regulations”) by a Guardian journalist, Mr Rob Evans. In April 2005 he wrote to seven Government Departments, and asked for a list of correspondence between Prince Charles and the ministers for those Departments between 1 September 2004 and 1 April 2005, as well as copies of each piece of correspondence. Many of the Departments initially relied on exemptions contained in the Act in order to refuse to confirm or deny whether or not they held such information. Ultimately however, all the Departments admitted that such correspondence did exist, but they refused to disclose it.
As expected, last week’s Queen’s Speech included plans to reform libel law. This follows a concerted campaign to improve protection of the right to free expression and bring greater clarity to England’s libel law. But the question for those who wanted to see reform, now the Defamation Bill has been published, is whether the reforms proposed will be the right ones.
The media law blog, Inforrm, published this summary of the Bill, which takes a detailed look at the main clauses. Law blog Jack of Kent also has a libel reform resource page here. Among others, the Bill would make the following major changes:
Create a test of “serious harm” for statements to be considered defamatory.
Abolish the common law defences of fair comment, justification and Reynolds privilege, and place them on a statutory footing.
Create a new statutory privilege for peer-reviewed scientific and academic publications and provide greater protection to online entities.
Amend the existing law of qualified privilege to include reports of scientific conferences and press conferences.
Proposals for much-criticised powers which would have given ministers broad powers to alter statutes with little or no debate are to be dropped.
The proposed changes were dubbed “Henry VIII” powers as they would have given the executive powers similar to those of the 16th century tyrant. Lord Taylor of Holbeach told the House of Lords:
I can confirm to the House that the government have accepted the arguments that bodies and offices should be listed in the schedules of this Bill only where Parliament has given its consent in primary legislation.
Updated | The House of Lords has voted against the Public Bodies Bill for a second time, making it more likely that the so-called Henry VIII powers buried within it will be revised.
The House defeated the bill by 235 votes to 201. The Bill, which has already attracted attention for seeking to abolish 192 quangos, was heavily criticised by the House of Lords Select Committee on the Constitution. The committee said that the powers given to ministers under the bill to change the statute book were too broad, and needed to be limited by procedural safeguards (see this post). It argued:
Updated | The Select Committee on the Constitution has published its report on the Public Bodies Bill, and has expressed concern that the Bill as proposed will impose “Henry VIII” powers on the Executive.
The Bill, which has already attracted attention for seeking to abolish 192 quangos, is currently making its way through Parliament (track its progress here) and has its second reading in the Lords on Tuesday 9th November. You can watch a recording of the debate here. The committee reports:
When assessing a proposal in a Bill that fresh Henry VIII powers be conferred, we have argued that the issues are ‘whether Ministers should have the power to change the statute book for the specific purposes provided for in the Bill and, if so, whether there are adequate procedural safeguards’. In our view, the Public Bodies Bill [HL] fails both tests.
The Lord Chief Justice has lamented the ease with which new laws can be passed without proper scrutiny, comparing new powers to those which were imposed by England’s worst tyrant.
Lord Judge, who is the Lord Chief Justice and head of the judiciary, was speaking at the annual Lord Mayor’s dinner for the judiciary; his speech can be read here.
The thrust of the judge’s speech was his concern at the proliferation of what he called “Henry VIII” clauses, the proliferation of which had “astonished” him. Henry VIII’s 1539 Statute of Proclamations allowed the King’s proclamations to have the same force as Acts of Parliament. Lord Judge compared this to a series of recent Acts which have given the Government licence to enact law without the scrutiny of Parliament.
Sarah Ferguson, the Duchess of York, is in trouble for offering to sell her influence for cash. She proposed to sell access to her ex-husband Prince Andrew, a “trade envoy”, for £500,000 to an undercover reporter from the News of the World. The circumstances of the sting raise interesting issues in respect of the right to privacy under the Human Rights Act.
Article 8 of the European Convention on Human Rights provides that “Everyone has the right to respect for his private and family life, his home and his correspondence“. The right is not absolute, and can be breached by a public authority “in accordance with the law and is necessary in a democratic society”, that is, if the breach is in the public interest. Only public authorities need to keep within these rules.
it seems to us that there is a proper justification for the publication of the story. What the Duchess was offering was “access to a public official”, for a payment which appears to be wholly disproportionate to the “monetary value” of the service offered… The fact that neither the Duchess nor the businessman had any specific wrongdoing in mind does not matter. The whole transaction was “tainted” and its exposure was, we suggest, justified for that reason. Continue reading →
This blog is maintained for information purposes only. It is not intended to be a source of legal advice and must not be relied upon as such. Blog posts reflect the views and opinions of their individual authors, not of chambers as a whole.