ALAN RUSBRIDGER POLLY TOYNBEE v THE ATTORNEY GENERAL [2002] EWCA Civ 397

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM
[2002] EWCA Civ 397Case No Case No: C/01/1452Venue Royal Courts of Justice, Strand,, London, WC2A 2LL
Between
ALAN RUSBRIDGER POLLY TOYNBEEAppellantTHE ATTORNEY GENERALRespondent
Before
Lord Justice SchiemannLord Justice MayLord Justice Jonathan ParkerGeoffrey ROBERTSON Q.C. and Lucy MOORMAN (instructed by The Guardian Legal Department) for the AppellantsPhilip SALES and David PERRY (instructed by Treasury Solicitor) for the RespondentDate 20 March 2002

Lord Justice Schiemann :

This

[1]is the judgment of the court. The background to the present application for permission to appeal is that the Mr Rusbridger, the editor of a newspaper, wanted to publish one or more articles written by Ms Polly Toynbee advocating the abolition of the monarchy. The paper’s legal department discovered section 3 of the Treason and Felony Act 1848 (“the 1848 Act”). Mr Rusbridger wrote this letter to the former Attorney General Lord Williams of Mostyn:
“Dear Mr. Attorney. I write to give you notice that from December 6 th (the day of the Queen’s speech) onwards the Guardian propose to publish a number of articles which will invite and incite support for a republican government in the United Kingdom. Their purpose and intention will be to deprive and depose Elizabeth Windsor (and her successors) from the style, honour and royal name of the imperial crown of the United Kingdom, although they will not advocate the use of criminal force so to do. We draw your attention on the Treason Felony Act of 1848 which would appear to make this intention, when declared “by publishing any printing or writing”, an offence for which as editor I shall either be liable to imprisonment or else transported beyond the seas for the term of my natural life. Although our researchers have not located any prosecution since 1883, it has not been repealed and Archbold (chapter 25, paras 32-35) indicates that it is still of full force and effect. In one precedent, The Queen against John Mitchel (1848) 6 St. Tr. (NS) 599, the judge instructed the jury that advocacy of republicanism was necessarily an offence: There are no two things more inconsistent with each other – no two ideas more opposed to each other – no two expressions more contradictory of each other than that of a republic to a monarchy; and any man who does avow his desire to compass and obtain a republic, must inevitably intend to imagine the deposition and destruction of the monarchy. The two things cannot combine; the destruction of one is involved in the existence of the other. And if, looking to the natural import, tenor and meaning of the words used, you think that he did compass and intend to have a republic, there is necessarily and inevitably implied in that compassing an intention to deprive Her Majesty of her imperial throne.”
Further in The Queen against Charles Gavan Duffy (1848) 2 St. Tr. (NS) 795, in summing up to the jury Ball J. stated that:
“.... if any person shall entertain the intention of deposing Her Majesty from her sovereignty in this country, or the intention of levying war against Her Majesty for the purpose of coercing her to change her measures and counsels and shall in either case manifest such an intention by any printing or writing, he shall be guilty of felony ... an attempt to depose the sovereign does not impart any intention to injure the Queen or even to treat her with any personal disrespect. Neither is a formal intention to deprive her of her titles, position and dignity necessary. The offence has been perpetrated if the prisoner has entertained and expressed the intention of constituting or setting up in this Kingdom any body of persons who were to exercise the functions of the Government and virtually to supersede the Queen’s authority – still more so if the prisoner has entertained and expressed an intention of severing this country from the British crown and establishing either a republic or any other form of Government.”
I might be thought unnecessarily punctilious in drawing your attention to a law which has become in effect a dead letter, and which you would probably not wish to reactivate in the absence of an incitement to criminal violence. However (as Lord Reid has said) bad laws are not defensible on the grounds that they will be sensibly enforced. Moreover, since this Act is a blatant infringement of free speech (and has been deployed in its time to transport courageous Irish editors in chains to Botony Bay) I would be grateful if you could tell me where I stand. I am entitled under the Human Rights Act 1998 to know whether my proposed exercise of my right (and my readers' right) to freedom of expression is to be restricted by a prescribed law which seeks a legitimate aim, is necessary in a democratic society and is proportionate to the legitimate aim. I invite you therefore to announce your intention to disapply the Treason Felony Act (1848) in respect of all published advocacy of the deposition or destruction of the Monarchy other than by criminal violence. You would, I imagine, justify this course on the grounds that the Act has fallen into desuetude or that to prosecute in the aforementioned circumstances is not in the public interest because it would be a clear breach of the incorporated ECHR Article 10. Alternatively you might use your “parens patriae” position to seek a declaration in the High Court that as a result of the operation of section 3 of the Human Rights Act (1998), section 3 of the Treason and Felony Act (1848) no longer bears its literal meaning, but should be interpreted “so far as is possible” to comply with Article 10 (ECHR). The Act seems to create four separate offences, viz: 1). Depriving etc the Queen of her title; 2). Levying war against her in order “by force or constraint” to compel her to alter her counsel; 3). Intimidating either or both the Houses of Commons or House of Lords through force or constraint; 4). Stirring foreigners to invade the United Kingdom by force. It might be “possible” for a court to read back into the first offence the element of force which is expressly included in the three following offences. Should you ask the High Court for a declaration to this effect, the Guardian will support you. I hope you will not treat this as an idle or hypothetical matter. There is mounting evidence from human right organisations that Britain’s failure to repeal or reform unused penal laws or statutes incriminating free speech serves as an excuse for oppressive Governments in former colonies to use the legal equivalent to persecute and jail journalists and dissidents. No Government committed to human rights should suffer these anachronisms to remain as part of British law in the twenty-first century.”[2]This produced the following:
“Dear Sir, Thank you for your letter of 28 November, received late in the afternoon of 29 November, informing me that you propose to publish a series of article in The Guardian starting on 6 th December, and seeking a number of decisions concerning a possible offence under the Treason Felony Act 1848. I hope you will understand that neither David Calvert-Smith nor I can give you an assurance regarding whether or not a prosecution or other action will be taken in respect of your proposed conduct. You are asking me to take action, with little notice, which sanctions in advance conduct which may be criminal. I have not seen the articles. A decision whether or not to bring a prosecution involves consideration of the evidence and the public interest, against known facts. It seems to me that you should take you own legal advice, and then decide for yourself whether you will follow it. It may be that your letter is essentially directed at prompting reform of the 1848 Act. The Human Rights Act 1998 retained the principle of Parliamentary sovereignty, and it ultimately remains the role of the legislature rather than the courts to decide whether to retain legislation. It is open to you to write to the Home Secretary on the question of law reform should you wish to do so.”
[3]Mr. Rusbridger replied on 6 th December. “Dear Mr. Attorney, Thank you for your letter of 4 December written on behalf of yourself and the Director of Public Prosecutions. In my earlier letter I asked you to confirm you would disapply the Treason Felony Act 1848 in respect of all published advocacy of the deposition or destruction of the monarchy other than by violence. I infer from your reply that you and Mr. Calvert-Smith have decided that the Treason Felony Act still penalises the peaceful advocacy of republican government in Britain notwithstanding the Human Rights Act. Your decision as to whether I will be prosecuted depends, you say, upon your “consideration of the evidence and the public interest against known facts”. I am sending you a copy of today’s Guardian for your consideration, from which you will see we are inviting support for a republican government in Britain although without use of violence. You have refused to confirm I will not be prosecuted. In the event of my arrest my contention that s. 3 of the Human Rights Act requires re-interpretation of the Treason Felony Act so that liability depends on incitement of violence can be tested before a High Court Judge at the Old Bailey. If you decline to prosecute on public interest grounds, I nevertheless remain open to prosecution each time I publish such material if you (or your successor, perhaps from a different government) take a different view of this subjective notion of the “public interest”. I therefore remain a “victim” for the purposes of Article 34 of the European Convention and will bring proceedings under s. 7 of the Human Rights Act to obtain a declaration on construction of the Treason Felony Act that will remove all possibility of future prosecution of myself or any other peaceful editor or journalist. As you say you have had little notice. To allow you time to consider the issues raised in this letter and in my letter of 28 November I should be grateful to know within 28 days whether you intend to prosecute.[4]To this the Attorney General replied on 8 th December. Dear Mr. Rusbridger, Thank you for your letter of 6 December, enclosing a copy of the Guardian. I had in fact already read it. You have asked me to confirm that I will disapply the Treason Felony Act 1848 in respect of all published advocacy of the deposition or destruction of the monarchy other than by violence. It is not for any Attorney General to disapply an Act of Parliament: that is a matter for Parliament itself. You made a number of observations about action you will take if you are, and if you are not, prosecuted. I read these with interest.[5]So the article was published. We understand no prosecution under the 1848 Act followed. So Mr Rusbridger and Ms Toynbee continue to write and no suggestion is made of any pressure of any kind being applied to them other than that constituted by the letters which we have quoted and the very existence of this Act of Parliament.[6]Section 3 of the 1848 Act with which we are concerned now reads: 3. Offences herein mentioned declared to be felonies ...If any person whatsoever shall, within the United Kingdom or without, compass, imagine, invent, devise, or intend to deprive or depose our Most Gracious Lady the Queen,.... from the style, honour, or royal name of the imperial crown of the United Kingdom, or of any other of her Majesty’s dominions and countries, or to levy war against her Majesty,... within any part of the United Kingdom, in order by force or constraint to compel her ... to change her... measures or counsels, or in order to put any force or constraint upon or in order to intimidate or overawe both Houses or either House of Parliament, or to move or stir any foreigner or stranger with force to invade the United Kingdom or any other of her Majesty’s dominions or countries under the obeisance of her Majesty, ... and such compassings, imaginations, inventions, devices, or intentions, or any of them, shall express, utter, or declare, by publishing any printing or writing,... or by any overt act or deed, every person so offending shall be guilty of felony, and being convicted thereof shall be liable, ... to be imprisoned for the term of his or her natural life.....[7]Even a trained lawyer has difficulty in grasping its meaning. The editor of a newspaper can be forgiven if he shares that difficulty. The matter is further complicated by the Human Rights Act 1998 (“the HRA”). This provides in section 3 that so far as it is possible to do so primary legislation must be read and given effect to in a way which is compatible with Convention Rights. RvA [2001] UKHL 25 shows the lengths to which the courts will go to carry out this statutory obligation.[8]The claimants’ case was put thus in the Detailed Statement of Facts which is appended to the Judicial Review Claim Form. 7. “As at the date of filing there has been no move to prosecute the claimants. Although the Treason Felony Act contains no time limit on prosecutions, and The Guardian for 6 December remains in print (obtainable as a back issue or by down-loading from The Guardian website) it is a reasonable inference from the lapse of 7 weeks since publication that no prosecution will be brought and hence the court will not be provided with the opportunity to declare the law in the course of criminal proceedings. The Attorney General has not himself sought a declaration as requested by the claimant in the letter of 28 November. 8. In these circumstances, the claimants are ‘victims’ (for the purposes of s7 and Article 43 of the ECHR), of the act of a public authority, namely the failure by the defendants, as public officials charged with applying the law, to decide whether s3 of the HRA applies to assist the construction of s3 of the HRA. The defendants have either refused to consider whether it does (i.e. a breach of their law enforcement duty) or have considered that it has no effect (an error of law). The claimants remain open to prosecution, since the original edition of The Guardian is still available and since they propose to publish further advocacy of a Republic. It is of importance to the right of freedom of expression guaranteed to the claimants and to their readers that the threat to prosecute should be authoritatively declared either baseless or real.”[9]In the Detailed Statement of Grounds appended to the Claim form, the claimants put their legal case as follows “ 4. The Act was extensively deployed in Dublin in August and October 1848, but very rarely thereafter. Archbold 2001 (Chapters 25-35) claims to cite all reported cases on the Statute – 10 from these Dublin sessions and one from 1867. These cases establish that if the natural tenor, impact and meaning of any publication discloses an intention to support a republican form of Government, an offence under the first limb of s.3 is committed. See for example, the summing up in R v John Mitchel (1848) 6 St.Tr. (NS) 599 at p. 685-6, and R v Charles Gavan Duffy (1848) 7 St. Tr. (NS) 915 at 950-951. Both defendants were newspaper proprietors – Mitchel of “The United Irishman” and Gavan Duffy of the “The Nation” – and Mitchel was sentenced to transportation for 14 years. 6. This construction it is not the only interpretation which it is possible sensibly to advance. In 1848, Lord Chief Baron Alderson in his charge to the grand jury which sent Mitchel and Gavan Duffy to trial intimated that the section might require the Crown to show a mens rea beyond “the warm and zealous advocacy of opinions conscientiously entertained, the expression of which does not transcend the limits of the law” (Report on the proceedings under the Treason Felony Act, Dublin 1848 p.6). This raises the ‘possibility’ that the section may, by implication, require proof of intent to achieve the offending purpose by unlawful means. Another possible interpretation was advanced by the first claimant in his letter of the 28 th November 2000, namely to deconstruct the section into four offences all of which would require proof of a specific intent that force or constraint should be used to achieve the offending purpose. 9. Under European jurisprudence, which the Court is now required to apply persuasively (s.2 HRA), prohibition upon incitement to establish a republic by lawful means cannot be “necessary in a democratic society”. A law which proscribes publication of a political idea infringes the right to freedom of expression. The aim of such a ban, namely to protect one among a number of forms of democratic government, cannot be in the interests of national security, whatever the insecurities of 1795 and 1848. It corresponds to no “pressing social need”. It could only be defended under 10(2) as protecting the inherited right of one person – the monarch – but is neither necessary to this end (hence the absence of any recent prosecution) nor could a criminal statute threatening life imprisonment be proportionate thereto. The Article 10(1) right has a special status under the ECHR: Court decisions consistently refer to it as “one of the essential foundations for a democratic society” and require “as a matter of general principle” that the necessity for any restriction must be “convincingly established” (Sunday Times (No. 2) (1992) 14 EHRR 229 ). The defendants cannot convincingly meet the burden of proving the need for a literal interpretation of s.3 of the 1848 Act. 10. Moreover, s. 3 fails the requirement that any interference with freedom of expression must be “prescribed by law”. The wording is so confused, and the precedent so old, that it is impossible for any person who peacefully advocates a republic in print or writing to know whether he or she will be prosecuted. ( Sunday Times v United Kingdom) Evidence that the Article 10 infringement is not “prescribed by law” is provided by the first defendants’ letters in this case. He is unable to state whether the law does incriminate the publication of non-violent republican sentiments. 11. S. 3 of the 1848 Act as construed infringes Article 10 for a third reason. It has no legitimate aim. In principle it is rarely legitimate to infringe Article 10 to protect the non-Convention rights of others: see Chassagnou and Others v France (2000) 29 EHRR 615. It cannot seriously be argued that the aim of prohibiting republican advocacy is to protect state security. It is not legitimate to protect royalty from criticism (Wille v Liechtenstein (1999) 30 EHRR 558) or to infringe a Convention right out of respect for history/tradition (Buscarini v San Marino (1999) 30 EHRR 208). 12. It follows that if the Court decides it is impossible to interpret s. 3 in either of the ways suggested in paras 6 & 7 above, the conditions for making a declaration of incompatibility under s. 4(2) of the HRA would be present and in view of the importance of the Article 10 right the discretion to make such a declaration ought to be excised in the claimants’ favour.”[10]The relief which was claimed before the Administrative Court consisted in substance of four declarations which we number for the purpose of exposition. 1. A declaration that the decision of the defendants that s.3 of the 1848 Act is unaffected by s.3 of the HRA is erroneous in law and in breach of s.6 of the HRA. 2. A declaration that the decision of the defendants that a newspaper editor who publishes articles which invite and incite the establishment by lawful means of a republican form of government in the United Kingdom, and a journalist who writes such articles, remain liable to prosecution under s.3 of the 1848 Act is erroneous in law and in breach of s. 6 of the Human Rights Act. 3. A declaration that by virtue of the operation of s.3 and Schedule 1 of the HRA 1998, s.3 of the Treason Felony Act 1848 does not apply to persons who evince in print or in writing an intent to depose the monarch or deprive her of her imperial status or to establish a republican form of government unless their intent is to achieve this by acts of force, constraint or other unlawful means. 4. Alternatively a declaration of incompatibility under s.4(2) of the HRA.[11]The proceedings against the DPP were abandoned before the matter came to the Administrative Court and we say no more about them.[12]The Administrative Court ((Rose LJ and Silber J) decided that the claim against the Attorney General in relation to his acts – declarations 1&2 - was unarguable for a number of reasons 1. The Court held that nothing that the Attorney General had said in the letters of 4 or 8 December amounted to any decision. Nor was there evidence of any other decision or action. He failed to prosecute but no complaint is made in relation to that. 2. Assuming that s.3 of the 1848 Act was contrary to the Convention and could not be read down so as to make it compatible, it would still not be unlawful for the Attorney General to act in accordance with the 1848 Act. 3. Assuming that s.3 of the 1848 Act was compatible with the Convention, then it would not be unlawful for the Attorney General to enforce it.[13]Geoffrey Robertson Q.C., who appears for the applicants, does not, as we understand him, challenge these conclusions. In any event Mr Robertson no longer seeks to challenge any action or inaction on the part of the Attorney General. In those circumstances, permission to challenge the refusal of the Administrative Court to give permission for an application for Judicial review of the Attorney General’s actions must be refused.[14]That leaves outstanding the applications by the editor and journalists to the court to make declarations 3 and 4.[15]The Administrative Court held that in so far as the claim for declarations 3 or 4 is concerned, this could not be advanced because s.7(1) of the 1848 Act, under which the claims were brought, required an unlawful act by a public authority and here there was none.[16]Before us the argument for the claimants was differently presented - in any event, its emphasis was different. The case is no longer advanced primarily under section 7 of the 1848 Act. Mr Robertson submits that the court has jurisdiction to make a declaration as to the meaning of an Act of Parliament and that the court ought to exercise this jurisdiction so as to clarify the meaning of section 3 of the 1848 Act in the light of section 3 of the HRA and the provisions of the Convention in particular Article 10. His primary submission in broad terms is that the existence of section 3 of the 1848 Act read on its own inhibits publication of matter which advocates the establishment of a republic but that it can be read in the light of the HRA in such a way as not to inhibit such publication. His fall back submission is that, if his primary submission be wrong, then the court ought to make a declaration of incompatibility under section under section 4 of the HRA thus making it possible for remedial action to be taken under section 10.[17]Another difference from the way the case was argued before the administrative court is that Mr Robertson no longer seeks declaration 3 in the form set out above but asks for a declaration that section 3 of the HRA 1998 applies to section 3 of the 1848 Act and that in consequence that section must henceforth be read and given effect to as if the phrase “by acts of force or constraint or other unlawful means” followed and qualified the words “to deprive or depose”. No objection was taken to our giving permission for the case to be amended in that way so late in the day. During his reply, Mr Robertson sought to advance the possibility that there might be a declaration related solely to the articles which were published on 6 December 2000. This was a totally new argument and, in the light of objection, we refused permission to make such an amendment.[18]Mr Philip Sales appeared for the Attorney General. Although as helpful as his instructions permitted, he was in no sense appearing as an advocate to the court. He regarded his instructions as being primarily to uphold the refusal of the Administrative Court to make declarations 1 and 2 which, of course, related to alleged shortcomings of the Attorney General. As we have indicated, fairly early on in the submissions before us, though not in his written submissions, Mr Robertson made clear that he no longer sought those declarations.[19]Mr Sales was not instructed or prepared to make any submissions - and the Administrative Court made no finding one way or the other - as to what construction should be put on section 3 of the 1848 Act in the light of the HRA. He however helpfully indicated that in his opinion - we think that in the circumstances that is an accurate way of putting it - the court had jurisdiction in exceptional cases to make the sort of declaration for which Mr Robertson was now asking. He drew our attention to a number of cases - Imperial Tobacco Ltd v Attorney General [1981] AC 718, Attorney General v Able [1984] 1 QB 795, and R (Pretty) v Director of Public Prosecutions [2001] EWHC Admin.788. He suggested that the present was not an exceptional case and that, in any event, the decision whether or not to make a declaration was a discretionary one and this court should only upset an exercise of a discretion if it was plainly wrong.[20]There was some discussion in front of the Administrative Court as to whether the present proceedings are properly characterised as Judicial Review proceedings requiring permission to bring them or whether they are not properly so characterised and therefore do not need permission. The Administrative Court came to the conclusion that the former was the case but that it did not matter since the proceedings would in any event be struck out under the Civil Procedure Rules as being unarguable. It is common ground that an application for Judicial Review is, at the least, an appropriate method of seeking the relief currently sought and that was in fact the procedure adopted by the applicants.[21]Before us is an application for permission to appeal the decision of the Administrative Court to refuse permission to apply for Judicial review. There are powerful arguments against letting litigants occupy the time of the court with problems which do not affect them personally. There are people with pressing problems whose cases await solution. They are waiting longer because this case is being heard. We do not understand the claimants to suggest that the uncertainty of our law as to treason has affected their decision to publish in the past or is likely to in the future. Their stance is that of the Duke of Wellington: publish and be damned. Nor is there any evidence to suggest that the existence of the 1848 Act causes them to sleep in their beds less soundly. Moreover it can be said that the exercise envisaged in Article 10(2) of the Convention is very fact specific, depending on time and place, and that therefore any declaration which might be made would be so vague as to be of no practical value.[22]On the other side, there are powerful arguments in favour of free speech and also of having our criminal law formulated in such a way that the citizen can see what is prohibited and what is not. Of course there will always be borderline cases but it cannot seriously be contended that our many statutes dealing with treason which go back to 1351 but are still partly in force leave the law in a satisfactory state. So far as treason is concerned our law, as William Joyce discovered at the price of his life, is far from clear and easy to understand – see Joyce v DPP [1946] A.C. 347. The statutes have usually been framed in response to national emergencies which passed centuries ago. Take the very Act with which we are concerned. 1848 was a year of revolutions in Europe. Louis Philippe was forced to abdicate. Metternich fell. There was unrest in Vienna, Budapest, Berlin and Rome. The Continent was in turmoil. The Chartists were busy here. Parliament was anxious lest what it saw as the revolutionary plague caught hold in this country. Its reaction was to pass the 1848 Act.[23]Times have moved on. No one has been prosecuted under the 1848 Act for over 100 years. Every few years Parliament passes a Statute Law (Repeals) Act which repeals outdated statutes. While bits of the 1848 Act were repealed in the 19th century other bits including the section with which we are concerned survive in part.[24]In 1998, 150 years later, the HRA was passed. Parliament chose, for reasons which are readily understandable, not to amend all Acts which might require amendment in the light of our obligations under the Convention but instead to leave the Courts to do what they can with the help of section 3 of the HRA. This technique is valuable when deciding whether or not a publication which has taken place constitutes a criminal offence. It is of no help to the person who wishes to publish in the future unless he has access to the courts to tell him in advance whether what he proposes to do is lawful. Even if he has such access, it is of limited help since the Crown Court will not be bound to follow any decision of the Administrative Court, although no doubt it would usually do so.[25]The claimants have abandoned the claim in respect of the Attorney General’s acts or inaction but now seek relief from the Court in the form of a declaration as to the meaning of an Act of Parliament and a declaration of incompatibility in the event that the Court finds that the 1848 Act is incompatible. Had the relief been sought in that form initially the Attorney General would have been the proper respondent to the proceedings but in a purely formal rather than in a personal capacity. It is common ground that the Court has jurisdiction to make such a declaration but that this jurisdiction will only be exercised sparingly.[26]The Attorney General has chosen not to express his view as to the proper construction of the 1848 Act in the light of the HRA. Indeed we do not know if he has one. Neither he nor the Director of Public Prosecutions have indicated what prosecution policy is in relation to articles advocating republicanism in this country. The proper construction of the 1848 Act seems to us potentially relevant to the exercise by the Court of any discretion to make a declaration. We see room for a possible argument to the effect that section 3 of the 1848 Act is on its face incompatible with the HRA even if read in the light of s.3 of the HRA and that it is in the public interest that this incompatibility be declared so that the remedial action in section 10 may be considered by the Home Secretary.[27]These matters have, for the reasons which we have given, not been fully argued as yet. We of course express no view as to whether a declaration in the form now sought should be granted or as to the construction of the 1848 Act but we consider that it would not be in the interests of justice to prevent the matters raised in this application from being fully argued. We do not approach the matter as though we were reviewing the exercise of discretion by the Administrative Court since that Court did not have before it the application for the declaration which we have before us and since the arguments apparently addressed to it were different from those which we heard.[28]We refuse permission to appeal the refusal of the Administrative Court to grant permission to apply for Judicial Review so as to secure the declarations sought in the Judicial Review Claim Form. That refusal was justified for the reasons given by that Court. However, the submissions in support of the relief described in paragraph 16 above raise points of general interest, which we consider ought to be the subject of proper consideration.[29]That then raises the question as to whether the application as amended should now proceed in the Administrative Court or whether we should retain the matter in this Court. We have not heard submissions on this. In the light of the possible application in the future of section 5 of the HRA it would seem sensible for the Treasury Solicitor to send the Home Secretary a copy of this judgment and ask whether he would wish to make any submissions at this stage as to the procedural route forward and the proper order for this court to make.

Order

Appeal dismissed; Appellant do pay ½ Respondent’s costs of the appeal; costs to be subject to detailed assessment; matter remitted to the Administrative Court; Application for Permission to Appeal to House of Lords refused. (Order does not form part of the approved judgment)

Cited in 4 later judgments