The Privy Council Reinstates Principle Over Pragmatism: Inherent Powers and When to Use Them in Relation to Holding a Closed Material Procedure

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Notes

1 [2011] UKSC 34, [2012] AC 531.

2 ibid [69].

3 [2013] UKSC 38, [2014] AC 700.

4 Christopher Sargeant, ‘Two steps backward, one step forward – The cautionary tale of Bank Mellat (No 1)’ (2016) 3(1) Cambridge Journal of International and Comparative Law 111.

5 K Hughes, ‘Judicial Review and closed material procedure in the Supreme Court’ (2013) 73(3) Cambridge Law Journal 491, 493.

6 [2018] UKSC 1, [2018] AC 236.

7 ibid [59].

8 [2023] UKPC 9.

9 Bell contends that JCPC decisions are treated in the Supreme Court ‘like obiter dicta in an English case, rather than the interpretation of a foreign law’: J. Bell, ‘Comparative law in the Supreme Court, 2010–11’ (2012) 1(2) Cambridge Journal of International and Comparative Law 20, 23. See also Lord Neuberger’s position in Willers v Joyce (No 2) [2018] AC 843, 853 where he considers decisions of the JCPC as being of great weight and persuasive value.

10 For example Bisset v Wilkinson [1927] AC 177 (PC).

11 See Andrew Ashworth, ‘Commentary on the decision in Holley’ (2005) Criminal Law Review 966.

12 R v Jogee & Ruddock v The Queen [2016] UKSC 8; [2016] UKPC 7; [2017] AC 387.

13 Ramoon (n 8) [51] (Lord Lloyd-Jones).

14 In Attorney General for Jersey v Holley [2005] UKPC 23, [2005] 2 AC 580 the Board sat as a bench of nine, specifically to address the conflict between the Privy Council’s decision in Luc Thiet-Thuan v R [1997] AC 131 and that of the House of Lords in Morgan Smith [2001] 1 AC 146. The Board did not follow the House of Lords decision by a 6:3 majority. See also n 11.

15 The vast majority of Privy Council Boards comprise solely Supreme Court justices. There are a few notable exceptions where present or former holders of high judicial office from New Zealand or Jamaica have appeared on Boards, as noted by Lord Mance and Jacob Turner, Privy Council Practice (Oxford University Press 2017) 3; and a cursory glance through the current court listing confirms this to be an ongoing practice for some, but not all, cases.

16 Grand Court Act (2015 Revision) s 11(1).

17 [1968] AC 901 (HL).

18 See Michael Bromby, ‘Challenging the Decision of the Cayman Islands Government to Transfer a Prisoner to the United Kingdom’ [2022] JR 148.

19 Ramoon (n 8) [52] (Lord Lloyd-Jones).

20 ibid [51].

21 Mance and Turner (n 15) 5.06.

22 [2001] EWCA Civ 680, [2001] 1 WLR 1786.

23 R v Chief Constable of West Midlands Police ex p Wiley [1995] 1 AC 274 (HL).

24 [2011] UKSC 35, [2012] 1 AC 452.

25 Kennedy v UK (2011) 52 EHRR 4, handed down only six days after the Court of Appeal’s judgment in Tariq.

26 (1987) 9 EHRR 433.

27 (1994) 18 EHRR CD72.

28 App no 16965/04 (ECHR, 6 July 2010).

29 App no 35090/09 (ECHR, 7 March 2017).

30 Ramoon (n 8) [68] (Lord Lloyd-Jones).

31 ibid [71].

32 The ‘five eyes’ nations comprise Australia, Canada, New Zealand, UK and USA, who share intelligence under a multilateral agreement. See David Jenkins, ‘The Handling and Disclosure of Sensitive Intelligence: Closed Material Procedures and Constitutional Change in the “Five Eyes” Nations’, in Genevieve Lennon and Clive Walker (eds), Routledge Handbook of Law and Terrorism (Routledge 2015) 266.

33 Eva Nanopoulos, ‘European Human Rights Law and the Normalisation of the “Closed Material Procedure”: Limit or Source?’ (2015) 78(6) Modern Law Review 913.

34 ibid 915.

35 Although see in England and Wales the recent decision of the Divisional Court (Dame Victoria Sharp PKBD, Sir Stephen Irwin) in R (Commissioner of the Police of the Metropolis) v Crown Court at Kingston-Upon-Thames [2023] EWHC 1938 (Admin). In that case, the Divisional Court allowed a judicial review claim of the refusal by the Crown Court to permit the use of a common law CMP in an appeal against the refusal of a firearms licence, in circumstances where there was no statutory provision for the same. Ramoon was considered in detail at [34] onwards (and see [42], where it was distinguished). A CMP was permissible but it ‘should only be considered where it is critical for the fair disposal of a firearms appeal': [52].

36 Lord Kerr, ‘“Only Parliament can do that”? The reliance of British jurisprudence on the common law in the national security context’ (2015) 34(3) CJQ 244, 246.

37 ibid.