Mr Martin Warsama (Claimant in HQ16X04249) v The Foreign and Commonwealth Office

JurisdictionEngland & Wales
CourtQueen's Bench Division
JudgeVictoria McCloud
Judgment Date15 Jun 2018
Neutral Citation[2018] EWHC 1461 (QB)
Docket NumberNo. HQ16X04249 and HQ16X04250

[2018] EWHC 1461 (QB)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

MASTER Victoria McCloud

No. HQ16X04249 and HQ16X04250

In the Matter of the Bill of Rights 1689

In the Matter of the Human Rights Act 1998

Between:
(1) Mr Martin Warsama (Claimant in HQ16X04249)
(2) Ms Claire Gannon (Claimant in HQ16X04250)
Claimants
and
(1) The Foreign and Commonwealth Office
(2) The Wass Inquiry
(3) Ms Sasha Wass QC
Defendants

and

The Rt. Hon. the Speaker of the House of Commons
Represented non-party

Mr. Nicholas Bowen QC and Ms Louise Price of counsel (instructed by Messrs Meaby and Co, solicitors), appeared for the Claimants .

Mr. Neil Sheldon of counsel (instructed by the Government Legal Department) appeared on behalf of the 1 st Defendant

Mr. Jeremy Johnson QC (instructed by the Government Legal Department) appeared on behalf of the 3 rd Defendant

Ms Saira Salimi (Counsel for the Rt. Hon the Speaker of the House of Commons) appeared by way of written submissions for the Speaker .

Cases referred to in submissions and/or judgment:

Sir John Eliot's case, (1629) 3 St. Tr. 294, 3 Digest 326, 134

Stockdale v Hansard, (1837) 112 ER (1839) Ad. & E. 1

Pepper v Hart [1993] AC 593

Prebble v Television New Zealand [1995] 1 AC 321

AG v Trustees of the British Museum (Commission for Looted Art in Europe intervening) [2005] 397

Toussaint v A-G of St Vincent and the Grenadines [2007] UKPC 48

Office of Government Commerce v Information Commissioner (AG Intervening) [2008] EWHC 774 (Admin.)

R v Chaytor [2010] UKSC 52, [2011] AC 684

Kimathi & Ors v FCO [2017] EWHC 3379 (QB)

R (on the application of H-S) v SSHD [2017] WL 03174585

R (Javed) v Home Secretary [2001] EWCA Civ 789

Al-Fayed v UK [1994] ECHR 27

Hurley v Secretary of State for Work and Pensions [2015] EWHC 3382

A v UK 35 EHRR 51 (2003)

Zollmann v UK App. No. 62902/00.

Chauvy & Ors v France, (ECHR Appn. No. 64915/01)

Gunnarson v Iceland (ECHR Appn. No. 4591/04)

Strizhak v Ukraine (ECHR Appn. No. 72269/01)

Opinzar v Turkey (ECHR Appn. No. 20999/04)

Axel Springer AG v Germany (ECHR Appn. No. 39954/08)

Sunday Times v UK (1979) 2 EHRR 245

R (Justice for Health Ltd) v Secretary of State for Health [2016] Med LR 599

HA v University of Wolverhampton v Office of the Independent Adjudicator (General Pharmaceutical Council intervening) [2018] EWHC 144 (Admin)

Cordova v Italy (No. 1) Appn. No. 40877/98

R (Razgar) v Secretary of State for the Home Department [2004] 2 AC 368

R (Weaver) v London and Quadrant Housing Trust [2010] 1 WLR 363

YL v Birmingham City Council [2007] UKHL 27

Aston Cantlow and Wilmcote with Billesley Parochial Church Council v Wallbank [2003] UKHL 37

Somerville v Scottish Ministers (HM A-G for Scotland intervening) [2007] UKHL 44

R (on the application of L) (FC) v Commissioner of Police of the Metropolis [2007] EWCA Civ 168

H and L v A Local Authority [2011] EWCA Civ 403

R (T) v Chief Constable of Greater Manchester [2014] UKSC 35

Hoffmann-La Roche and Co. AG and others v Secretary of State for Trade and Industry [1974] AC 295

R (Mousa) v Secretary of State for Defence [2013] EWHC 2941

R (Anufrijeva) v London Borough of Southwark [2004] QB 1124

Statutes referred to:

The Bill of Rights 1689

The Parliamentary Papers Act 1840

The Human Rights Act 1998

The Inquiries Act 2005

Other material referred to:

Guide to Laying Papers”, House of Commons Journal Office, August 2017 Erskine May Parliamentary Procedure 24 th ed.

“Report of the Spoliation Advisory Panel in respect of a 12 th Century manuscript now in the possession of the British Library”, Return to an address of the Honourable House of Commons dated 23 March 2005, HC 406.

Motion for an Unopposed Return, Mr Hammond, Sec of State, House of Commons, 10 December 2015

The Wass Report Return to an Address of the Honourable the House of Commons dated 10 December 2015 HC 662 (‘ The Wass Inquiry Report into Allegations Surrounding Child Safeguarding Issues on St Helena and Ascension Island (Redacted Version)’)

The Bingham Report (“Inquiry into the Supervision of The Bank of Credit and Commerce International”), HC 250 1992–93

The Saville Report (‘ The Bloody Sunday Inquiry’), HC 29 2010–11

The Jones Report on the experience of the Hillsborough families (‘ The Patronising Disposition of Unaccountable Power’), HC 511 2017–19

Report of the Joint Committee on Parliamentary Privileges (HL paper 43, HC214 Vol 3 1998–9)

“Inquiries Guidance”, Cabinet Office (undated).

Department for Constitutional Affairs “ Effective Inquiries” CP 12/04, 6 May 2004 Joint Committee on Human Rights reports 2003–4 and 2006–7

Keywords: Bill of Rights 1689 — Constitution — Parliament — Parliamentary Privilege — Separation of Powers — Immunity — Jurisdiction of Court — Human Rights — Public Authority — Child Abuse — Inquiry Report — Motion for an Unopposed Return — ECHR Art 8 — ECHR Art 6 — Damages — St Helena and Ascension Island — Crown in Parliament — Non-Statutory Inquiry — Executive — Judicial Review — Delay — Professional Reputation — Salmon process — Maxwellisation

Introduction

1

The parliamentarian Sir John Eliot met his end by way of microbe, rather than by the judicial axe. The cause of his demise, from consumption, in 1632 at the Tower of London was nonetheless oppression by the Crown.

2

His offence was that he spoke freely in Parliament. Sir John had found himself a member of Parliament at an unfortunate moment, of the sort which is sometimes the lot of people opposing forces larger than themselves. As in his case, it sometimes does not turn out well 1.

3

He had presented resolutions against illegal taxation, and other matters, which he read to the House. When interrogated, he asserted a right to rely on privilege against questioning what was said in Parliament. He was fined by the Lord Chief Justice for conspiracy to resist an order of the King and for refusing to accept the jurisdiction of the Court of King's Bench, the predecessor of the court in which this judgment is given. ( Sir John Eliot's case, (1629) 3 St. Tr. 294, 3 Digest 326, 134.)

4

His case had constitutional implications. It gave impetus to the passage, in 1689, of what is today known as the Bill of Rights. The Bill of Rights 1689, Article IX (1 Will. and Mary sess. 2 c.2), is regarded as the source of – or perhaps on another analysis the confirmation of the inherent existence of 2 — parliamentary privilege, namely (in approximate terms for the moment) the freedom to speak freely in the course of parliamentary business without fear of legal action.

5

The facts of the two cases now before me arise in a more modern context, namely the inquiry and report into alleged child abuse on the island of St Helena, which

took the form of an inquiry by Ms Wass QC (D3) at the behest of the Foreign and Commonwealth Office (D1) in 2014, with the resulting report by her (‘the Wass Report’) being laid before Parliament using a “Motion for an Unopposed Return”, on 10 th December 2015. This judgment relates to the legal status of that procedure and the legal status of Ms Wass QC
6

The Claimants are social workers who carried out work on the island and who were criticised in the Wass Report. They sue the FCO, ‘the Wass Inquiry’ and Ms Wass QC for damages for breach of their Article 8 rights due to what they allege have been serious impacts on their private and professional lives. The Wass Inquiry was not a statutory inquiry under the Inquiries Act 2005 or the Inquiry Rules 2006. The terms of reference included the response of the St Helena authorities to child protection concerns, however the terms also provided for ‘a review and assessment of other matters not envisaged at the initial stages of the Inquiry but which, during the course of the Inquiry, it appears prudent to include in its scope’.

7

An indication of the seriousness of the conclusions in the Report can be gained from the following quotation:

“The Inquiry was established in response to a series of newspaper articles, leaked documents and extraordinary allegations made by “whistleblowers”. As the Inquiry progressed, it became increasingly clear that two of these individuals were largely responsible for the more salacious allegations and the resulting furore. This report necessarily looks at their role in considerable detail.

St Helena and its people have been grossly and unfairly tarnished by the allegations which the Inquiry was asked to investigate. I hope this report clears away the wilder, unsupported accusations.”

8

As far as the Claimants are concerned the process adopted by the Wass inquiry was procedurally and substantively unfair. In using that moderate language to characterise their positions here I do not intend to belittle the strength of feeling which the Claimants have, the seriousness of the unfairness which they feel, and the impacts on them which they allege. As per Ms Gannon's Particulars of Claim at para. 13 it is alleged that the Report was ‘littered with inaccuracies, and untruths’.

9

Mr Bowen QC indicated that it would not be an understatement to say that his clients' position was that the Inquiry was a disgracefully run tribunal and that Ms Wass QC was a senior criminal silk who was not independent. The inquiry was there to ‘achieve an end’. Such hot dispute was made clear by the adversarial sparks which flew between counsel on the subject. From D1's perspective (and I am sure D3 agreed) the allegations were ‘absurd and unpleaded’.

10

There was a query in D1's skeleton as to whether the Claimants were intending to challenge the accuracy of the Report or only the procedure which was followed but in my judgment the claims, imperfectly, do seek to challenge the accuracy of the Report and it is logically impossible to separate the most obvious alleged harm said to have been done to the Claimants by the the content...

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