Thursday, 11 February 2010

Constitutional Meat

The case of R (Binyam Mohamed) v Secretary of State for Foreign and Commonwealth Affairs raises a host of important constitutional issues. There is much in the case meriting reflection upon. The two key issues are –

Firstly, how far should the demands of National Security be allowed to compromise fundamental constitutional principles – such as the Rule of Law; accountability to Parliament and individuals’ rights? This is a very important – perhaps the most important – constitutional issue. By chance I’ve been listening to the audiobook of “Packing the Court” and have reached the point where the conflict between President Lincoln and the Supreme Court over this issue is discussed. To complement that I glanced again through former Chief Justice Rehnquist’s book “All the Laws but One”. (I also came across a very useful article by Lord Bingham - Personal Freedom and the Dilemma of Democracies') I recommend all of these if you are reflecting on the issue.

The deleted paragraph in the draft judgement in the Binyam Mohammed case contains the following criticisms of MI5
• It failed to respect human rights
• It deliberately misled Parliament
• It had a ‘culture of suppression’

National Security – and its oversight by Parliament and Congress is an interesting topic itself. Many of the works of Christopher Andrew deal with the subject. By coincidence yesterday also saw the passing of former Representative Charlie Wilson – and both the film and book about him “Charlie Wilson’s War” are useful primers on Congress and National Security.

The second issue concerns the rule established in the famous “Ship Money” case of the Seventeenth Century involving John Hampden [a case that Washminster will be discussing shortly] that there should be no secret communication between lawyers and the Court in legal proceedings (unless the Court has given specific directions).

The Guardian reports today that the Government’s QC, Jonathan Sumption, sent his comments on the draft judgement to Lord Neuberger, copying in only one of the parties to the case (Binyam Mohamed) - and not the representatives of the Guardian, Washington Post, New York Times, Liberty, Justice, Index on Censorship, who were also parties. Lord Neuberger assumed (as is standard practice) that all parties had seen Sumption's comments and had not felt the need to sumbit comments on Sumption's - and took this into account when he amended the draft.

Hansard contains the statement (and supplementary questions) made in the House of Commons on the case by Foreign Secretary David Miliband.

Your comments on these matters would be appreciated. You can make a comment directly - or send to me here.