1 Wednesday, 13 January 2016 2 (10. 00 am)
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| 25 I don't know if that is a convenient moment to stop,
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1 my Lord, because if we could come back at say 5 to 2, 2 because I am about to get to a new topic, which is 3 Article 6, and it is probably not -- 4 MR JUSTICE BLAKE: You will know better than me if it is 5 a convenient moment to stop there. Let's do that. 6 Let's just have a reflection, what is your current 7 estimate of how long you will need to complete your 8 submissions on all issues? 9 MR DE LA MERE: I am certainly not going to be any longer, 10 I don't think, than 3.30. I would hope to be earlier 11 than that. I would hope to be somewhere around about 12 quarter past 3, and maybe a bit earlier than that. We 13 will see what progress we make. 14 MR JUSTICE BLAKE: Let's take 3.30. Is that going to leave 15 you time to complete your reply? 16 MS CARSS-FRISK: I am optimistic that it will, my Lord. 17 MR JUSTICE BLAKE: So it looks like we might finish by about 18 4.30. 19 MS CARSS-FRISK: Yes. 20 MR JUSTICE BLAKE: Very good, thank you, that is helpful. 5 21 to 2. 22 (12.55 pm) 23 (The short adjournment) 24 (1.55 pm) 25 MR DE LA MERE: My Lord, as ever the way, you promise to 104
1 leave a topic and you are told over lunch of a point you 2 have forgotten. In relation to my Lord's point about 3 Tega, can I also refer my Lord to the point made at 4 paragraph 41 of our skeleton argument, and the point is 5 amply set out there, and I would ask you to turn up the 6 references in due course. But the point that -- or one 7 of the many points attempted on Mr Tega's behalf was 8 that effectively he had been appointed a diplomat and 9 could be taken as having entered to take up a post at 10 a permanent mission, and that was an evidential point 11 upon which the court was willing to embark upon an 12 investigation of. The short answer was the evidence 13 showed that any appointment, such as it was, was in 14 Switzerland rather than the UK, and ergo the factual 15 circumstances necessary to trigger the 39(2) immunity 16 had not been made out. So it is an instance of the 17 court's investigating the facts of that kind, the kind 18 I say are relevant, to establish whether or not the 19 immunity conferred by 31 accrues under 39. So 20 paragraph 41. 21 MR JUSTICE BLAKE: Yes. 22 MR DE LA MERE: That then takes me to topic 4, which is 23 Article 6. 24 Let me say at the outset that I think this point 25 arises only in circumstances where the certification is 105
1 being used or said to have effect in order to create 2 a legal fiction in relation to a matter of fact that is 3 relevant for the purposes of the enquiry required by the 4 Act and the Convention. So in that respect, I to 5 a substantial degree agree with my learned friend that 6 the first point of enquiry is what are the requirements 7 of the Vienna Convention. The 1961 Convention. 8 If I am right in relation to my functional or 9 substantive approach to who is a diplomat, that is 10 a matter that requires proof, and, therefore, the 11 legitimate scope of the immunity only extends insofar as 12 that matter has been proved. The relevance of the 13 Al-Adsani case law et cetera set out in our skeleton 14 argument is to show that the justification for 15 immunities whose effect is on any analysis to impact 16 upon rights of access to the court is only capable of 17 justification so far as such immunities strictly 18 correlate to the immunities conferred by international 19 law. 20 The starting point must be the functional test is 21 right, and it is either not being discharged in fact by 22 the court or because the Act so requires in some way or 23 a canon of case law so requires, let's say pre-Human 24 Rights Act case law so requires, it is inconsistent, and 25 if the certificate is being used so as to wholly remove 106
1 from the court's scrutiny a key factual issue, namely 2 what are the functions being discharged, and are they 3 sufficient to amount to a diplomatic post, then that is 4 inconsistent with the Convention and is a proper target 5 for an Article 6 argument. 6 In that connection I should say it does not assist 7 my learned friend to say that the Act and the process of 8 certification codifies the practice at common law, 9 because if the certification is being directed to 10 prevent enquiry to a fact that is relevant, namely the 11 functional purpose, it matters not whether the source of 12 that is statute or common law. There will be an 13 inconsistency with what is permitted by way of exception 14 to Article 6 because of international obligations. 15 So that is my starting point. 16 Now, I say this argument simply doesn't arise 17 because properly construed the certificate does not 18 begin to do anything that Ms Carss-Frisk requires it to 19 do to answer that central question. It simply doesn't 20 begin to answer the question of what are in fact this 21 man's intended functions, and what functions has he 22 taken up, and what functions does he continue to 23 discharge. So the Article 6 issue doesn't arise. 24 But if you are persuaded somehow that you have to 25 expansively read the certificate so as to find in it, 107
1 fish out of it what is nowhere there, then you do 2 squarely have an Article 6 problem if my submissions are 3 right. 4 The second point to note is there is nothing to 5 preclude a challenge to the certificate itself. There 6 is no Anisminic ouster language in the DPA. This is 7 a Winder v Wandsworth type of scenario. In other words, 8 where a party is relying upon a public act in the course 9 of completely conventional private litigation in order 10 to defeat a claim. They wish to rely upon the 11 certificate in those circumstances. It is entirely open 12 to me and my client to say that certificate is invalid. 13 Again -- 14 MR JUSTICE BLAKE: Without quashing it. 15 MR DE LA MERE: Without quashing it because that is what you 16 can do in private litigation, you treat it as a nullity, 17 according to the conventional approach, and proceed to 18 apply the law as if the certificate did not exist. 19 It is only if there were ouster language that you 20 couldn't do that. The only break upon that, therefore, 21 absent ouster language, are considerations of 22 justiciability. And any such argument, if it is 23 attempted in reply, faces this formidable difficulty. 24 Absent a certificate there can be no doubt but that the 25 job of the court is fact finding. Look at what they did 108
1 by examination in Apex, look at what they did by example 2 in Tega. There is nothing about these facts, is this 3 individual discharging this particular post, et cetera, 4 that is inherently non-justiciable. It is a completely 5 different order of problem or type of problem for that 6 presented by governmental or State recognition. 7 As we know, the terrain of non-justiciability has 8 distinctly the treaties, even in the field of 9 Commonwealth affairs, starting with the case of Everett 10 and proceeding thereafter, and one of the 11 well-established exceptions is where the resolution of 12 the point is necessary for the determination and 13 enforcement of private rights, and that is this case. 14 So there is no problem of justiciability. If, 15 therefore, the certificate errs either because it 16 purports to create a legal fiction that he is 17 undertaking functions, when all of the available 18 evidence shows that that is anything but the case, or if 19 it errs because it treats as predicates leading to 20 a conclusion the two facts of notification, then you 21 shall and should ignore the certificate. 22 There is no problem in getting to that result under 23 any ordinary construction of section 4 of the DPA 24 because upon analysis section 4 -- and let's go back and 25 have a look at it -- section 4, tab 1 confers open 109
1 textured discretion upon the Secretary of State. No 2 problem in saying that that discretion must be exercised 3 in conformity with the Human Rights Act. What that 4 means is in effect that if the Secretary of State 5 proceeds to attempt to issue a certificate that prevents 6 the investigation of a fact required by international 7 law, he will be in breach of Article 6. 8 Now, none of the cases that have looked at 9 immunities address that point. I double-checked 10 yesterday. I am not aware of any case where 11 a certificate itself has been challenged, still less 12 challenged on human rights grounds, but if you want an 13 analogy and one that I know my Lord is familiar with, an 14 analogy would be a PII certificate. A PII certificate 15 is not conclusive. They're very hard to challenge. But 16 when you have the facts or when you can demonstrate 17 a legal error you can challenge them. There is nothing 18 to stop us saying this certificate is invalid. 19 As I say, that is very much a fallback argument, and 20 on our primary construction of the certificate we are 21 entirely content to accept the two facts it contains and 22 treat the third limb of the certificate as either 23 containing another fact notified by the Qataris, my 24 first reading of the second part of the certificate, or 25 to state an impermissible and non-binding conclusion of 110
1 law, in which case none of these issues arise. 2 So that is Article 6 and binding certification, 3 I would simply say this about the case law, this case is 4 entirely on all fours with a Tinnelly-type 5 certification. What concerns the ECHR is anything that 6 prevents the proper investigation of the facts that are 7 properly justiciable before the courts, and the Matthews 8 case is barring the facts of that case where the court 9 had concluded that the bar in question was a substantive 10 legal bar, rather than a procedural bar, proved positive 11 for the fact that a certificate like this will be 12 treated as giving rise to Article 6 points. So in 13 Matthews they concluded that the law on Crown immunity 14 was part of the substantive law of England and, 15 therefore, something that said the Crown could not be 16 liable in these circumstances or there was a special 17 provision for payment of pensions was part of 18 substantive law. But for that it is plain that 19 a full-blown Tinnelly Article 6 analysis would have been 20 required. 21 Of course, in this context there is no international 22 practice to fall back upon to show that certification is 23 part and parcel of the international practice 24 underpinning the Convention, that is simply how we go 25 about it in the UK, and indeed it seems to be a variant 111
1 of that that is common in common law countries, by 2 contrast in civilian jurisdictions investigation of 3 these matters by the courts is commonplace, and they 4 don't have there the same sort of certification process 5 that we have. 6 So there is no way that you can justify 7 certification as a process in the Convention which 8 raises the question: is certification to create a fact 9 that is not a fact objectionable? 10 Of course, in many cases, in many cases there may be 11 some issue of fact and degree, and in that context it 12 may be that certification might be capable of 13 justification. But here when we look at the evidence we 14 will see there is no question of fact and degree. There 15 is no evidence of any diplomatic function. 16 That is topic 4. 17 Now, topic 5, the evidence, which because 18 Ms Carss-Frisk says you don't really have to engage with 19 it you haven't really been taken through it in any 20 detail. We have prepared a chronology, can I hand that 21 up. 22 MR JUSTICE BLAKE: I have got it, I think you sent it 23 through yesterday morning when I was reading in. 24 MR DE LA MERE: I am grateful. It was obviously shared with 25 my learned friend and we asked if they had any objection 112
1 to it being put before the court, and there is none. 2 MR JUSTICE BLAKE: No. Of course, by that time I had done 3 my own, but there we are. 4 MR DE LA MERE: I am sorry. 5 I think what we are all agreed upon, I will be 6 corrected if I'm wrong, is that the defendant has the 7 burden of proof in relation to the establishment of an 8 immunity, and we set out passages from Apex that clearly 9 show that to be the case. So if we are right about 10 functions, they have the burden of proof in relation to 11 that. You have my point that in a typical employment 12 dispute once the State says this is the case, provides 13 even some evidence, a party is not going to have any 14 basis to go behind that type of assertive evidence. 15 But in this case there is a group of compelling 16 evidence that this is not a man who is a diplomat. He 17 is not a man who you would track his progress around the 18 UK or around the world by following the court circular 19 pages or the diplomatic press, you can follow him on 20 Instagram or by watching his acquisitions through the 21 lens of the Financial Times and other business papers, 22 and he is a man from whom his own mouth has retired. 23 What I want to do is to start with his own 24 statements because as a simple place to go the best way 25 to gainsay what limited evidence he has given about his 113
1 minister councillor status in his first witness 2 statement, where he simply says "I have been appointed 3 a minister councillor to promote economic relations 4 between Qatar and the UK", is to look at what he has 5 been saying elsewhere. 6 So compare and contrast, bundle 2, tab 6, 7 paragraphs 18 to 19: 8 "I am currently a minister councillor in the Embassy 9 of the State of Qatar in the UK." 10 MR JUSTICE BLAKE: Bundle 2, tab 9, page 116. 11 MR DE LA MERE: "In such capacity [this is as far as his 12 evidence goes] I have responsibility for promoting 13 relations between the State of Qatar and the United 14 Kingdom." 15 Then he attaches the FCO letter. 16 He doesn't say how he is promoting such relations, 17 we only get that in the second round of evidence where 18 it is said to be economic relations, nothing else, and 19 that is significant, given the Article 42 point. 20 What then has he been saying elsewhere 21 contemporaneously with supposedly having taken up this 22 post? 23 MR JUSTICE BLAKE: So if we just remind ourselves from your 24 chronology, page 2, he functions as Prime Minister end 25 on 26 June 2013, and on 28 August 2013 is the 114
1 notification of appointment as a member of the 2 diplomatic staff. 3 MR DE LA MERE: Yes. 4 MR JUSTICE BLAKE: So we are looking at events after 5 28 August 2013. 6 MR DE LA MERE: The first thing we will look at is the 7 Charlie Rose interview. 8 MR JUSTICE BLAKE: Yes. 9 MR DE LA MERE: This, as you can see from page 210, 10 13 May -- 11 MR JUSTICE BLAKE: Yes, I can see that. 12 MR DE LA MERE: -- is after the taking up of the post. 13 MR JUSTICE BLAKE: Yes, quite, so that falls within the 14 relevant period, I just wanted to get the time frame. 15 MR DE LA MERE: Absolutely right. 16 MR JUSTICE BLAKE: Yes. 17 MR DE LA MERE: This is all whilst he has responsibility for 18 promoting economic relations. He doesn't say what he 19 actually does pursuant to that responsibility. 20 Now, we have asked you to look at the interview 21 because it is actually live evidence, if you like, and 22 you can -- 23 MR JUSTICE BLAKE: I have read the text, I am afraid 24 I haven't -- 25 MR DE LA MERE: I would encourage you to look at the links 115
1 and look at the relevant passage. It won't take long, 2 it is on YouTube, and we have provided the link. 3 MR JUSTICE BLAKE: I am sure the government computer will go 4 crazy if I did such things. 5 MR DE LA MERE: My Lord, I suspect my Lord has an Internet 6 connection at home. 7 MR JUSTICE BLAKE: Internet? 8 MR DE LA MERE: Maybe in your idle hours, if there are such. 9 MR JUSTICE BLAKE: I see. I have not done that, but I have 10 read the text. 11 MR DE LA MERE: Right. Well, you will see there is a series 12 of fairly clear statements. Page 213 there is 13 a statement that he has taken a year of rest after 14 giving up his position of Prime Minister, and this 15 interview is effectively of that year of rest, because 16 it is the first interview he has promised to give, 17 promised to give the Charlie Rose Show his first 18 interview, you see that at the top of the page, that's 19 where he talks about fulfilling his promise after taking 20 one year of rest from what he has happened, and he goes 21 on to say: 22 "I will tell you one thing now, I am more free, 23 I can talk with you as a private citizen now." 24 More free. 25 MR JUSTICE BLAKE: Yes. I have noted those references to 116
1 private citizen, more free, and not speaking on behalf 2 of the government of Qatar. 3 MR DE LA MERE: "Spending more time with my family, pursuing 4 my private businesses, more time", et cetera, at the 5 bottom of the page, 213. 6 And over the page, 214, he says: 7 "I did a lot of business before I joined the 8 government and after I joined the government because at 9 certain times it was ..." 10 And he goes on to say: 11 "And now I feel I can do better in my business", 12 et cetera. 13 And then starting at page 215, and this may not be 14 a point my Lord has focused on so much, you see the 15 defendant joining issue in the debate about the 16 relationships between Qatar and Egypt and the 17 developments in Egypt after the overthrow of 18 Mohamed Morsi by General Sisi. Qatari, Egyptian 19 relationship and the support of the Islamic Brotherhood 20 by Qatar is a subject of very considerable and obvious 21 sensitivity, but it is a subject that is dealt with at 22 length in the interview, which is inconceivable that 23 a diplomat would be engaged in that type of activity. 24 MR JUSTICE BLAKE: In my preparation for this case, 25 I haven't even purported to look at international 117
1 foreign policy issues in the Gulf, and so I really 2 haven't, but am I right in thinking that the 3 State of Qatar gives support to Al-Jazeera? 4 MR DE LA MERE: That is right, yes, it operates Al-Jazeera. 5 MR JUSTICE BLAKE: Well, I tread carefully -- 6 MR DE LA MERE: I think it is a state-owned channel. Yes, 7 it is a state-owned channel, it's like the BBC. 8 MR JUSTICE BLAKE: Is it? I don't know about that but you 9 are telling me that. 10 MR DE LA MERE: I don't think it is a subject of dispute. 11 MR JUSTICE BLAKE: But I think Al-Jazeera and the Egyptian 12 judiciary have not always seen eye to eye. 13 MR DE LA MERE: That is exactly right, and that is in part 14 because Al-Jazeera and the State of Qatar support the 15 Islamic Brotherhood. 16 MR JUSTICE BLAKE: Right. 17 MR DE LA MERE: But look at 214, the whole point of this 18 interview is candour to be able to talk about topics 19 such as this, so that he can talk -- and this is about 20 two-thirds of the way down: 21 "I can now think enough, I can do things without 22 thinking back that they will say he is working with the 23 government." 24 In other words, he can comment on topics without 25 being accused of speaking as a mouthpiece of the 118
1 government. 2 Then he wades into the topic of Egypt. That is the 3 first of this type of interviews. 4 The second one is the Q and A session a couple of 5 months later at an Intellectual Club Lecture Series of 6 the Foreign Policy United Nations Association of 7 Austria, UNA Austria, Vienna, dated 10 June 2015, and 8 again page 312, we have clear evidence, he says: 9 "I am a retired guy, so I will speak more freely, 10 more free than usual." 11 That is page 312. 12 MR JUSTICE BLAKE: Yes. 13 MR DE LA MERE: The answer to the first question. 14 317 at the foot of the page: 15 "Thank you very much. As you know, I am an 16 individual, I am not in the government." 17 Then turning on most strikingly at 327 he wades into 18 the treatment of Mohammad Morsi who has been sentenced 19 to death, and says: 20 "I think what we said in court in Egypt is it is not 21 fair in my personal opinion. Of course, the affair of 22 Egypt is the affair of the Egyptian people but in my 23 opinion this is not the right solution and this will not 24 lead to a peaceful Egypt in my opinion." 25 Bear in mind, I showed you Article 41(1), the 119
1 primary obligation of a diplomat is not to interfere 2 with the internal affairs of a State, but here he is 3 wading in. 4 MR JUSTICE BLAKE: He is not a diplomat to Egypt, is he? 5 MR DE LA MERE: He's not a diplomat to Egypt, but he is 6 still a diplomat, it is a distinctly undiplomatic thing 7 to be doing on a TV show. 8 MR JUSTICE BLAKE: Who is "we"? Who is "we said", does that 9 have any significance? 10 MR DE LA MERE: I don't know. 11 MR JUSTICE BLAKE: It is not "we the government of Qatar". 12 MR DE LA MERE: Conceivably. 13 MR JUSTICE BLAKE: Did they say anything in court in Egypt? 14 MR DE LA MERE: I don't know. No doubt Ms Carss-Frisk will 15 tell us. 16 First of all, he is going around saying he is 17 retired, he is acting in a private capacity and he is 18 pursuing his business interests. 19 Secondly, he is plainly doing so in extensive part 20 in the UK. 21 Now, I don't know if my Lord has read Mr Barnett's 22 witness statement, have you? 23 MR JUSTICE BLAKE: I have gone through it at a fair trot 24 I think it is fair to say. 25 MR DE LA MERE: This witness statement, it's not really 120
1 substantially traduced, shows that the defendant is 2 a substantial private investor in the UK economy. Now, 3 whether or not the investment is direct or indirect is, 4 in my submission, entirely immaterial. He is 5 beneficially entitled to the investments in question. 6 The only argument taken on that point is that the 7 investments are made not just for himself but also for 8 his family. 9 MR JUSTICE BLAKE: Yes. 10 MR DE LA MERE: It is family investment. And it can be no 11 answer to the fact that the investment in question is of 12 a character to fall within, to engage Article 42, to Directory: wp-content -> uploads -> 2016 2016 -> 2017 afoCo Landmark Scholarship Program 2016 -> Instructions for the Preparation of Camera-Ready Contributions to the Conference Proceedings 2016 -> Step student Scholarships for Year 10-13 2016 -> The united church of canada 2016 -> Idan raichel biography – May 2016 Brief Producer, keyboardist, Lyricist, composer and Performer Idan Raichel 2016 -> An introduction to centre’s interventions expanding access to justice 2016 -> Sanchar Shakti 2016 -> Unit analysis should help here. We want number of bananas 2016 -> The Autobiography of Elder Joseph Bates 2016 -> The Great Heat and the Rhode Island Deep Water Bay Scallop (Argopecten irradians) Fishery 1875-1905 Download 1.31 Mb. Share with your friends:
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