Thursday, 17 May 2012

Lord Sumption - Speeches

Lord Sumption was sworn in as a Justice of the Supreme Court on 11th January 2012.  Since then he has made two speeches:
The latest speech, relating to Foreign Affairs, is considered by Joshua Rozenberg writing in The Guardian 16th May - "If Sumption has his way, courts will hold foreign secretary to account."

Traditionally, there have been areas
where the courts feared to tread and, typically, these included various areas where Royal prerogative powers have held sway.  The conduct of foreign affairs and the disposition of the Armed Forces of the Crown are such areas.  The judges tended to state that some areas of decision-making were "non justiciable."  Underlying this attitude was perhaps the view that Parliament was the proper place for Ministers to be held to account in relation to their decisions in such areas.  Holding the executive accountable is, in constitutional theory, a key role of Parliament.  However, with a somewhat executive-dominated House of Commons there are questions about whether, in practice, Parliament is all that effective.  The views of Lord Sumption are, as ever, interesting.  Whether his views are indicative of the future stance of the courts remains to be seen and, of course, many judges prefer to reserve their views for cases coming before them in which the point is in issue.  (As an example of the latter see Lord Carswell's speech in R (Gentle) v Prime Minister at para 63).

The reader may be interested to look at the following cases which arose in the context of the Iraq War:

CND v Prime Minister, Secretary of State for Foreign and Commonwealth Affairs and Secretary of State for Defence [2002] EWHC 2759 (QB) - Simon Brown, Maurice Kay LJJ and Richards J.

R (Gentle) v Prime Minister, Secretary of State for Defence and Attorney-General [2006] EWCA Civ 1689 - Sir Anthony Clarke MR, Lord Judge (President of the QBD) and Dyson LJ.  Note:  Jonathan Sumption QC (as he then was) acted for the the respondents.

R (Gentle) case in the House of Lords - nine Law Lords formed the Appellate Committee - [2008] UKHL 20.

The Queen's Speech indicated that a Bill is to be introduced to bring the Justice and Security Green Paper into law.  This will introduce closed material procedure into sensitive cases of the type where Ministers might be keen to avoid detailed scrutiny.  Typically, such cases are likely to arise in connection with foreign affairs and defence.  The Law Society (9th May) responded to the Justice and Security Bill by saying:

"The secret justice proposals in the Justice and Security Bill must not become a cloak for a Government to hide its blushes nor be allowed to deny justice to deserving cases."

Attention is also drawn to a speech (25th January) by Lord Kerr - Lord Kerr at the Clifford Chance Lecture (PDF) - The UK Supreme Court - The modest underworker of Strasbourg?


  1. and the HL in corner house is perhaps not without relevance...

  2. Ah yes - Corner House - discontinuation of a prosecution. Interestingly, Baroness Hale stated - "I confess that I would have liked to be able to uphold the decision (if not every aspect of the reasoning) of the Divisional Court. It is extremely distasteful that an independent public official should feel himself obliged to give way to threats of any sort. The Director clearly felt the same for he resisted the extreme pressure under which he was put for as long as he could. The great British public may still believe that it was the risk to British commercial interests which caused him to give way, but the evidence is quite clear that this was not so. He only gave way when he was convinced that the threat of withdrawal of Saudi security co-operation was real and that the consequences would be an equally real risk to “British lives on British streets". The only question is whether it was lawful for him to take this into account."

    The House of Lords held that it was lawful.

  3. Holding the executive accountable is, in constitutional theory, a key role of Parliament. However, with a somewhat executive-dominated House of Commons there are questions about whether, in practice, Parliament is all that effective.

    Not that effective, I'd say, particularly as/when Privy Councillors are at the helm.

    There is an interesting account by Gerald Reaveley James, ex-chairman of Astra Holdings PLC, who was embroiled in the Matrix Churchill (arms sales in the 1980s to Iraq by British companies), which details some of the shenanigans which were not judicially scrutined, again under the cloak of 'national security'.