CORNWALL
2000: CIVIL LIBERTIES/HUMAN RIGHTS
45
Higher Bore Street, Bodmin, Cornwall UK. PL31
1JS
Administrative Court Office
Royal Courts of Justice
Strand WC2A 2LL
29 January 2007
Dear Madam/Sir
Re: The Queen on the application of JOHN ANGARRACK versus SECRETARY OF STATE FOR THE DEPARTMENT OF COMMUNITIES AND LOCAL GOVERNMENT CO/389/2007
I write following recent efforts on our behalf to secure through the High Court an interim prohibitory injunction preventing the Secretary of State from submitting the UK 2nd Report on the Framework Convention for the Protection of National Minorities to the Council of Europe without first subjecting that document to judicial scrutiny. The hearing took place on Friday 26th January 2007 before Mr Justice Mitting in Court 3 at 10.30am.
The purpose of this letter is threefold: 1. To seek the courts permission to hold the PCO hearing separately from, and well before, any other consideration. 2. To amend the existing claim form and statement of grounds/facts to take account of a new and very important decision taken by the defendant. 3. To place on record for the benefit of international observers and other interested parties our deep concerns and serious reservations about the manner in which the 26th Jan 2007 hearing was held, the behaviour of the judge and the subsequent outcome of the hearing,
1. To seek the courts permission to hold the Costs Protection Order hearing separately from, and well before, any other consideration.
By letter of 23 January, the court stated that the PCO application was scheduled for hearing on the same day as the injunction application. At that hearing Justice Mitting said “the defendant did not at present wish to make any submission on that issue and wishes to have the matter adjourned for consideration at the same time as permission” [the defence papers also state same]. I was in no position to properly consider the request or object to it.
However, having now read the defence papers presented to me in the court chamber less than five minutes before the start of proceedings, I realise that to follow through on this decision would leave me exposed to considerable costs i.e. the defendant’s costs in preparing the summary grounds for resisting the substantive claim. Work that the defence would be undertaking irrespective of whether or not that claim proceeded to fruition – which of course will be dependant on the outcome of the application for a PCO.
It does not seem fair on the claimant, or make wise use of the public purse, to run up defence cost preparing for an event that is itself wholly dependant on another outcome – namely, the application for the PCO.
I therefore seek
permission to have the application for a PCO heard separately from, and well
before, any other consideration. By making this application I rely upon The
Queen on the Application of the Campaign for Nuclear Disarmament v. The Prime
Minister [2002] EWHC 2712 and Wilkinson v Kitzinger & Her Majesty's
Attorney General (Lord Chancellor intervening) [2006] EWHC 835 (Fam).
The present PCO
application will need to be amended to take account of an important decision
taken by the defendant and first revealed to me at the 26 Jan 2007 hearing. The
revised PCO will be with the court and defendant within fourteen days of the
date of this letter.
2. To amend the existing claim form and statement of grounds/facts to take account of a new and very important decision taken by the defendant.
Paragraph 15 of the defence paper states, “the draft report simply records the unchanged policy on the Cornish question”. I assume the defendant would wish to apply this interpretation of the situation to the two other decisions under examination.
The defendant’s new assertion is in effect stating that the report does not record an event, i.e. a recent decision, but merely acts as a reminder of an existing policy [presumably decided many years ago]. This is critical to the claim. If left unchallenged, it places the entire claim in jeopardy in that the claim is out of time and will fail on that criterion. If successfully deployed by the defendant, this new strategic approach would prevent the three decisions from being subjected to judicial scrutiny. Not only does such a move reveal the defendants level of desperation, it begs the question: Why is the defendant so resolutely opposed to having her decisions, and hence government policy towards the Cornish, subjected to the potential rigours of judicial scrutiny? If the defendant has done nothing to harm the Cornish, she has no cause to fear.
The defendant’s decision to adopt this stance must be challenged. It must be challenged because it describes a situation that is totally at odds with that which has been outlined time and again in letters written on the defendants behalf, namely, that the decision on the Cornish was with ministers. Our first indication that the decision had been taken was on 12 December 2006 when the draft 2nd report arrived in the post. The decision must also be challenged in order to be able to move to a position where the defendant’s decisions, and government policy, can be subjected to the potential rigours of judicial scrutiny. It must also be challenged because failure to do so will, in effect, render the decision to exclude the Cornish from the Convention unchallengeable for all time.
For these reasons I wish to amend the claim form and statement of facts/grounds to include this new situation with the matter necessarily being treated as a preliminary issue prior to the main claim. The amended claim form to be with the court and defendant within fourteen days of date of this letter.
3. To place on
record for the benefit of international observers and other interested parties
our deep concerns and serious reservations about the manner in which the
26th Jan 2007 hearing was held, the behaviour of the judge and the
subsequent outcome of the hearing.
As we were prevented from recording the hearing, these comments are based on notes taken by myself and observers sitting in during the hearing and pooling notes immediately afterwards.
Justice Mitting said that he refused the application for interim relief on the following grounds: a) It would be inimical to good administration to order that the report be delayed until after it has undergone judicial scrutiny, b). The Cornish might derive some benefit from an injunction, but 78 other ‘national minorities’ might be harmed by such a delay. c) The claim was brought too late.
We wish to put on record the following:
a) It would be
inimical to good administration to order that the report be delayed until after
it has undergone judicial scrutiny.
The first inference to be gleaned from the above is that the qualitative harm the Cornish suffer as a result of submitting a report vitiated by unfairness, procedural impropriety, irrationality and unreasonableness is that the harm is reduced to a level of significance that suggests if the harm is to be considered at all, it will be considered only in the context of whether it is administratively convenient for the defendant to do so.
The second inference to be gleaned is that it is good administrative practice to submit to an international monitoring body a minority rights report that, without proper justification, specifically singles out and targets for unlawful discrimination a vulnerable section of society facing ethnocide.
The third inference is that it is good administrative practice to submit to an international monitoring body a report that quite clearly vitiates against accurate evaluation of UK Convention compliance.
The fourth inference is that it is good administrative practice to complete the document and then, forewarned that an interim injunction was to be applied for, withhold publication for over 2.5 years. By publishing in early December 2006, and allowing just enough time to complete the consultation process prior to the 20th February 2007 Advisory Committee meeting [which is the last chance for the report to be considered by the AC prior to the March 2007 state visit] the judge had an additional reason to refuse the injunction. This observation is made after the defendant consistently refused to explain why publication was withheld.
b) The Cornish might derive some benefit, but the 78 other national minorities would be harmed by such a delay.
The idea for this statement must derive from my outlining to the judge the fact that the report refers to UK ethnic monitoring programmes, which in turn reference some 79 different ‘ethnic’ groups. The purpose behind raising this issue was to highlight the fact that the defendant is refusing to reveal which of these groups are covered by the Convention, and this is one of the anomalies in the report requiring judicial scrutiny.
One might have though that such an argument was persuasive. However, Justice Mitting made no comment on the point being made, merely seizing the opportunity to make the above assertion. No evidence was produced in support of Justice Mittings assertion.
In the course of his deliberations, Justice Mitting asserted that the purpose of the claim was to get the Cornish recognised as a national minority. I had to point out that the purpose of the claim was not to get the Cornish recognised as a national minority, but to get the Government to establish fair, consistent and clear implementation procedures, and within those procedures have the Cornish treated the same as other groups who are in analogous, or relevantly similar, situations. In the course of making the above statement, Justice Mitting said that UK ethnic monitoring programmes identified 79 ‘national minorities’. When I pointed out that UK ethnic monitoring programmes identify ‘ethnic groups’, a dismissive sweep of the arm accompanied the judges comment, “national minorities, ethnic groups, whatever!”. This ‘who cares?’ attitude permeated the whole hearing.
c) The claim was brought too late.
It is unsure what this means. If it is suggested that the claim was brought too late in the monitoring cycle, then that is entirely the fault of the defendant. Therefore the judge has rewarded bad administrative practice. If, on the other hand, it is suggested that the claim was late in terms of the time between knowing of the decisions and acting upon them, this is unreasonable. The period in question amounts to one month, which includes the Xmas/New Year period. On hearing of the decisions, we acted as swiftly as we could.
The impression given is that a decision was first reached, and then tenuous, or ill-conceived, ‘reasons’ were sculpted to attempt justification. I could appeal the decision, but there is no reason to believe that the High Court would act on this issue in a different manner. Therefore an appeal would in all probability be a waste of time and money.
In conclusion, we sincerely hope and believe that independent observers will opine that although the defendant secured a legal victory, the ethical and moral victory is ours. In the meantime, we await the Courts response to our requests.
Yours sincerely
John Angarrack
Recorded delivery