QUEEN'S BENCH DIVISION (DIVISIONAL COURT)
London, WC2A 2LL
B e f o r e :
THE HONOURABLE MR JUSTICE MAURICE KAY
THE HONOURABLE MR JUSTICE RICHARDS
| THE CAMPAIGN FOR NUCLEAR DISARMAMENT
|- and -
|(1) THE PRIME MINISTER OF THE UNITED KINGDOM
|(2) THE SECRETARY OF STATE FOR FOREIGN & COMMONWEALTH AFFAIRS
|(3) THE SECRETARY OF STATE FOR DEFENCE
Smith Bernal Wordwave Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
(instructed by Public Interest Lawyers) for the Applicant
Philip Sales Esq & Ms Jemima Stratford
(instructed by The Treasury Solicitor) for the Respondents
Crown Copyright ©
Lord Justice Simon Brown:
i) 7 November 2002 (the day before Resolution 1441 was adopted), in the House of Commons:
"I do not want to anticipate what will happen if there is a breach, except to say that although we would much prefer decisions to be taken within the Security Council, we have always made it clear that within international law we have to reserve our right to take military action, if that is required, within the existing Charter and the existing body of UN Security Council resolutions if, for example, a subsequent resolution were to be vetoed. However, I do not believe it will come to that."
ii) 10 November 2002, when interviewed on BBC Radio 4:
"Well, I think it's pretty obvious what 'serious consequences' means. Of course there were some negotiations over the text, but the United States and the United Kingdom would not have voted for this text, indeed sponsored the text, had we not been satisfied that it spelt out a very clear set of ultimata to Saddam Hussein, gave the inspectors the best possible powers and also spelt out at the end of the resolution what would happen if Saddam Hussein did not cooperate. It's all there. It's very clear and, yes, military action is bound to follow if Saddam Hussein does not cooperate fully with the terms of this resolution."
iii) 25 November 2002, in the House of Commons:
"I should make it clear to the House, as I did on 7 November, that the preference of the British Government, in the event of a material breach, is that there should be a second Resolution authorising military action. The faith now being placed in the Security Council by all members of the United Nations, including the US, requires the Council to show a corresponding level of responsibility. So far it has more than done so. I believe it will do so in the future. But we must reserve our position in the event that it does not."
"We will always act in accordance with international law."
"4. Decides that false statements or omissions in the declarations submitted by Iraq pursuant to this resolution and failure by Iraq at any time to comply with, and cooperate fully in the implementation of, this resolution shall constitute a further material breach of Iraq's obligations and will be reported to the Council for assessment in accordance with paragraphs 11 and 12 below;
11. Directs the Executive Chairman of UNMOVIC and the Director-General of the IAEA to report immediately to the Council any interference by Iraq with inspection activities, as well as any failure by Iraq to comply with its disarmament obligations, including its obligations regarding inspections under this resolution;
12. Decides to convene immediately upon receipt of a report in accordance with paragraphs 4 or 11 above, in order to consider the situation and the need for full compliance with all of the relevant Council resolutions in order to secure international peace and security."
"There is no 'automaticity' in this Resolution. If there is a further Iraqi breach of its disarmament obligations, the matter will return to the Council for discussion as required in operational paragraph 12."
"3. The claimants have asked that the Government explain its understanding of the legal position with regard to the interpretation of Security Council Resolution 1441 (2002). In the judgment of the Secretary of State and the Foreign & Commonwealth Office, and in my own opinion, however, it would be prejudicial to the national interest and to the conduct of the Government's foreign policy if the Government were to be constrained to make a definitive statement of its legal position under international law in relation to issues concerning the international relations of the United Kingdom. The short point is that it is an unavoidable feature of the conduct of international relations that issues of law, politics and diplomacy are usually closely bound up together. The assertion of arguments of international law by one state is in practice regarded by other states as a political act, and they react accordingly. The UK's international alliances could be damaged by the incautious assertion of arguments under international law which affect the position of those other states.
4. This is especially true in a situation which (like the present situation covered by resolution 1441) is sensitive and where tension is high on all sides: the assertion of arguments of international law by one state which are unpalatable to other states may have the effect of increasing tension and diminishing the possibilities for a diplomatic (and, it is hoped, peaceful) solution. It is also especially true where the issue of international law to be considered is an issue which (like the interpretation of resolution 1441) affects not just the United Kingdom, but many other states as well, who will have their own strongly held views about the matter. It is frequently important for the successful conduct of international affairs that matters should not be reduced to simple black and white, but should be left as shades of grey and open for diplomatic negotiation. Questions of international law often remain at large and may form part of the wider debate between and within states.
5. Further, there are many and obvious examples of situations where the disclosure of a legal position on the part of the Government would be prejudicial to the national interest, as tending to indicate to other states the practical constraints affecting the Government. To disclose the Government's understanding of the legal position under international law of an international negotiation (eg of an amendment to a treaty, or of a resolution) could plainly be prejudicial to the success of the Government in that negotiation – as a practical indication of the constraints under which the Government may understand itself to be operating, and its legal "bottom line". Where an international issue involves the possible use of force by the Government, the advance discussion of legal advice as to the legality or otherwise of the use of force in a variety of possible circumstances could be of immense value to the potential adversary, allowing it to plan and adopt positions contrary to the interests of this country with greater assurance than would otherwise be the case.
6. The practical experience of the Foreign & Commonwealth Office shows, therefore, that the greatest care should be exercised and sensitive diplomatic judgment be brought to bear before the Government commits itself to supporting arguments in international law, which may prove controversial for friends and/or opponents and which may compromise the Government's own negotiating position as a tense international situation develops."
8. That statement is a considered position. The judgment of the Secretary of State and of the Foreign & Commonwealth Office is that, in this sensitive area and at this time, it would be detrimental to the national interest and the conduct of this country's international relations for the Government to go further or to commit itself to any more definitive view. The question whether the Government's views on the legal position on this issue should be further disclosed is a political issue, a decision on which would have consequences for our international relations. Any indication of the constraints (including legal constraints) which may affect decisions by an international coalition to use force to secure Iraqi compliance with its obligations regarding weapons of mass destruction could well be detrimental to achieving that objective.
9. Further, to make public the Government's detailed understanding of the legal position on the interpretation of SCR 1441(2002) in advance of any future negotiation in the Security Council of a further resolution could well be detrimental to the success of that negotiation.
10. It is also clear that the formulation of a legal position with regard to a future Security Council resolution must be dependent upon the facts and the circumstances prevailing at the time. To indicate now whether it is the Government's view that a resolution is or is not necessary, other than in abstract terms, would not be possible in view of the impracticability of forecasting the developing situation in detail, and would not be helpful in terms of arriving at a resolution of the situation in the interests of the United Kingdom. Thus, in the House of Commons on 25 November, the Foreign Secretary stated:
'Paragraph 4 [of Security Council resolution 1441] therefore defines in general terms what a material breach will consist of. As with any definition of that type, it is never possible to give an exhaustive list of all conceivable behaviours that it covers. That judgement has to be made against the real circumstances that arise'"
"It is important neither to blur nor to exaggerate the area of responsibility entrusted to the executive. The precise boundaries were analysed by Lord Scarman, by reference to Chandler -v- DPP in  AC 763 in his speech in CCSU -v- Minister for the Civil Service  AC 734, 406. His analysis shows that the Commission [SIAC] serves at least three important functions which were shown to be necessary by the decision in Chahal. First, the factual basis for the executive's opinion that deportation would be in the interests of national security must be established by evidence. It is therefore open to the Commission to say that there was no factual basis for the Home Secretary's opinion that Mr Rehman was actively supporting terrorism in Kashmir. In this respect the Commission's ability to differ from the Home Secretary's evaluation may be limited, as I shall explain, by considerations inherent in an appellate process but not by the principle of the separation of powers. The effect of the latter principle is only, subject to the next point, to prevent the Commission from saying that although the Home Secretary's opinion that Mr Rehman was actively supporting terrorism in Kashmir had a proper factual basis, it does not accept that this was contrary to the interests of national security. Secondly, the Commission may reject the Home Secretary's opinion on the ground that it was 'one which no reasonable minister advising the Crown could in the circumstances reasonably have held'. Thirdly, an appeal to the Commission may turn upon issues which at no point lie within the exclusive province of the executive. A good example is the question, which arose in Chahal itself, as to whether deporting someone would infringe his rights under Article 3 of the Convention because there was a substantial risk that he would suffer torture or inhuman or degrading treatment. The European jurisprudence makes it clear that whether the deportation is in the interests of national security is irrelevant to rights under Article 3. If there is a danger of torture, the government must find some other way of dealing with a threat to national security. Whether a sufficient risk exists is a question of evaluation and prediction based on evidence. In answering such a question, the executive enjoys no constitutional prerogative." (paragraph 54)
"38. [I]t seems to me, first, to be plain that the law of England will not contemplate what may be called a merits review of any honest decision of government on matters of national defence policy. Without going into other cases which a full discussion might require, I consider that there is more than one reason for this. The first, and most obvious, is that the court is unequipped to judge such merits or demerits. The second touches more closely the relationship between the elected and unelected arms of government. The graver a matter of State and the more widespread its possible effects, the more respect will be given, within the framework of the constitution, to the democracy to decide its outcome. The defence of the realm, which is the Crown's first duty, is the paradigm of so grave a matter. Potentially such a thing touches the security of everyone; and everyone will look to the government they have elected for wise and effective decisions. Of course they may or may not be satisfied, and their satisfaction or otherwise will sound in the ballot-box. There is, and cannot be, any expectation that the unelected judiciary will play any role in such questions, remotely comparable to that of government. …
39. I recognise that the notion of so grave a matter of State lacks sharp edges. But it is now a commonplace that the intensity of judicial review depends on the context (see for example Daly  2 WLR 1622 per Lord Steyn at paragraph 28). One context will shade into another; there is for instance a distinction between a deportation decision affecting a specific individual (as in Rehman) and a decision of defence policy (such as Trident), though both involve matters of national security.
40. Secondly, however, this primacy which the common law accords to elected government in matters of defence is by no means the whole story. Democracy itself requires that all public power be lawfully conferred and exercised, and of this the courts are the surety. No matter how grave the policy issues involved, the courts will be alert to see that no use of power exceeds its proper constitutional bounds. There is no conflict between this and the fact that upon questions of national defence, the courts will recognise that they are in no position to set limits upon the lawful exercise of discretionary power in the name of reasonableness. …"
"[C]ounsel for the Secretary of State raised a matter which did cause me concern at one stage, namely whether the view I have adopted contains an implicit criticism of the judicial departments of Germany and France. I certainly intend no criticism of the interpretations adopted in good faith in Germany and France. Unanimity on all perplexing problems created by multilateral treaties is unachievable. National courts can only do their best to minimise their disagreements. But ultimately they have no choice but to apply what they consider to be the autonomous meaning. Here the difference is fundamental and cannot be overcome by a form of words. The House is bound to take into account the obligations of the United Kingdom government and to apply the terms of … the 1996 Act."
"Although the statutory context in which Adan was decided was highly material, the passage from Lord Cross's speech in Cattermole supports the view that, albeit that caution must be exercised by this court when faced with an allegation that a foreign state is in breach of its international obligations, this court does not need the statutory context in order to be free to express a view in relation to what it conceives to be a clear breach of international law, particularly in the context of human rights."
"To my mind a law of this sort constitutes so grave an infringement of human rights that the courts of this country ought to refuse to recognise this as a law at all."
(i) It is not an answer to a claim for judicial review to say that the source of the power of the Foreign Office is the prerogative. It is the subject matter that is determinative.
(ii) Despite extensive citation of authority there is nothing which supports the imposition of an enforceable duty to protect the citizen. The ECHR does not impose any such duty. Its incorporation into the municipal law cannot therefore found a sound basis on which to reconsider the authorities binding on this court.
(iii) However the Foreign Office has discretion whether to exercise the right, which it undoubtedly has, to protect British citizens. It has indicated in the ways explained what a British citizen may expect of it. The expectations are limited and the discretion is a very wide one but there is no reason why its decision or inaction should not be reviewable if it can be shown that the same were irrational or contrary to legitimate expectations. But the court cannot enter the forbidden areas, including decisions affecting foreign policy.
(iv) It is highly likely that any decision of the Foreign & Commonwealth Office, as to whether to make representations on a diplomatic level, will be intimately connected with decisions relating to this country's foreign policy, but an obligation to consider the position of a particular British citizen and consider the extent to which some action might be taken on his behalf, would seem unlikely itself to impinge on any forbidden area.
(v) The extent to which it may be possible to require more than that the Foreign Secretary give due consideration to a request for assistance will depend on the facts of the particular case.
107. We have made clear our deep concerns that, in apparent contravention of fundamental principles of law, Mr Abbasi may be subject to indefinite detention in territory in which the United States has exclusive control with no opportunity to challenge the legitimacy of his detention before any court or tribunal. However, there are a number of reasons why we consider that the applicant's claim for relief must be rejected:
(i) It is quite clear from Mr Fry's evidence that the Foreign & Commonwealth Office have considered Mr Abbasi's request for assistance. He has also disclosed that the British detainees are the subject of discussions between this country and the United States both at Secretary of State and lower official levels. We do not consider that Mr Abbasi could reasonably expect more than this. In particular, if the Foreign & Commonwealth Office were to make any statement as to its view of the legality of the detention of the British prisoners, or any statement as to the nature of discussions held with United States officials, this might well undermine those discussions.
(ii) On no view would it be appropriate to order the Secretary of State to make any specific representations to the United States, even in the face of what appears to be a clear breach of a fundamental human right, as it is obvious that this would have an impact on the conduct of foreign policy, and an impact on such policy at a particularly delicate time."
"27. … [T]he Convention is an international treaty and the ECHR is an international court with jurisdiction under international law to interpret and apply it. But the question of whether the appellants' convictions were unsafe is a matter of English law. And it is firmly established that international treaties do not form part of English law and that English courts have no jurisdiction to interpret or apply them: J H Rayner (Mincing Lane) Limited -v- Department of Trade and Industry  2 AC 418 (the International Tin Council case). Parliament may pass a law which mirrors the terms of the treaty and in this sense incorporates the treaty into English law. But even then, the metaphor of incorporation may be misleading. It is not the treaty but the statute which forms part of English law. And English courts will not (unless the statute expressly so provides) be bound to give effect to interpretations of the treaty by an international court, even though the United Kingdom is bound by international law to do so. …
40. The argument that the courts are an organ of state and therefore obliged to give effect to the state's international obligations is in my opinion a fallacy. If the proposition were true, it would completely undermine the principle that the courts apply domestic law and not international treaties. There would be no reason to confine it to secondary obligations arising from breaches of the treaty. The truth of the matter is that, in the present context, to describe the courts as an organ of the state is significant only in international law. International law does not normally take account of the internal distribution of powers within a state. It is the duty of the state to comply with international law, whatever may be the organs which have the power to do so. And likewise, a treaty may be infringed by the actions of the Crown, Parliament or the courts. From the point of view of international law, it ordinarily does not matter. In domestic law, however, the position is very different. The domestic constitution is based upon the separation of powers. In domestic law the courts are obliged to give effect to the law as enacted by Parliament. This obligation is entirely unaffected by international law."
"Lord Bingham of Cornhill CJ [in the Divisional Court below] pointed out that in the present case the Director wished to know where he stood on the issue of compatibility of the legislation. The Director sought and relied on legal advice on that issue. Lord Bingham said that if the advice was wrong, the Director should have the opportunity to reconsider the confirmation of his advice on a sound legal basis. As Lord Bingham observed '… this approach is consistent with the judgment of Lord Hope [in Launder at p867]:
'If the applicant is to have an effective remedy against a decision [on extradition] which is flawed because the decision-maker has misdirected himself on the Convention which he himself took into account, it must surely be right to examine the substance of the argument'
I respectfully agree. There was no infringement of the principle of Parliamentary sovereignty."
"For the English court to pronounce upon the validity of a law of a foreign sovereign state within its own territory, so that the validity of that law became the res of the res judicata in the suit, would be to assert jurisdiction over the internal affairs of that state. That would be a breach of the rules of comity. In my view, this court has no jurisdiction so to do."
"The interpretation of treaties to which the United Kingdom is a party but the terms of which have not either expressly or by reference been incorporated in English domestic law by legislation is not a matter which falls within the interpretative jurisdiction of an English court of law."
"It is, however, self-evidently right that national courts must give great weight to the views of the executive on matters of national security."
i) The court has no jurisdiction to declare the true interpretation of an international instrument which has not been incorporated into English domestic law and which it is unnecessary to interpret for the purposes of determining a person's rights or duties under domestic law. That is the position here.
ii) The court will in any event decline to embark upon the determination of an issue if to do so would be damaging to the public interest in the field of international relations, national security or defence. That too is the position here. Whether as a matter of juridical theory such judicial abstinence is properly to be regarded as a matter of discretion or a matter of jurisdiction seems to me for present purposes immaterial. Either way I regard the substantive question raised by this application to be non-justiciable.
iii) Even were this claim not barred by either of the above considerations, I would still reject it on the ground that advisory declarations should not be made save for demonstrably good reason. Here there is none. There is no sound basis for believing the government to have been wrongly advised as to the true position in international law. Nor, in any event, could there be any question here of declaring illegal whatever decision or action may hereafter be taken in the light of the United Kingdom's understanding of its position in international law.
iv) Although in the ordinary way such fundamental objections to the very nature of the claim would strongly militate against permission being granted to advance it, because of the obvious importance of the issues before us and the skill and cogency of Mr Singh's arguments, I myself would propose that we grant permission and then, for the reasons given, dismiss the substantive claim. This, one notes, was the course adopted by the Court of Appeal in Abbasi. Frankly, it matters little which of the two routes is taken; these days the possibilities of appeal are the same in either case. Of one thing, however, I am sure: this application must fail and be dismissed at this preliminary stage.
Mr Justice Maurice Kay :
"many of the most important prerogative powers concerned with control of the armed forces and with foreign policy and with matters which are unsuitable for discussion or review in the Law Court."
In my judgment, this is most appropriately characterised as justiciability. If authority were required for this proposition it is to be found in the CCSU case, R v. Foreign Secretary, ex parte Everett  1 QB 811 (per Taylor LJ at p. 820) and R v. Criminal Injuries Compensation Board, ex parte P  1 All ER 870, at pp 879-882, per Neil LJ, who explained the difference between jurisdiction and justiciability in this context. I readily accept that the ambit of the "forbidden areas" is not immutable and that cases such as Everett and Bentley  1 Cr App 307 CA illustrate how the areas identified by Lord Roskill in the CCSU case have been reduced. However, the authorities provide no hint of retreat in relation to the subject- matter of the present case. This is hardly surprising. Foreign policy and the deployment of the armed forces remain non-justiciable. That is the first basis upon which I would refuse the present application. I would also refuse it on the other grounds to which Simon Brown LJ has referred and for the same reasons given by him. I agree that the "international law" ground is more appropriately categorised as going to jurisdiction rather than justiciability.
Notwithstanding the erudition with which it was advanced, this is an unsustainable challenge.
Mr Justice Richards:
i) According to Mr Ricketts's evidence, the assertion of arguments of international law is part and parcel of the conduct of international relations; it is frequently important for the successful conduct of international affairs that matters should not be reduced to simple black and white, but should be left as shades of grey and open for diplomatic negotiation; and in relation specifically to Resolution 1441 it would be detrimental to the conduct of this country's international relations for the Government to go further than its considered position. In the face of that evidence, it seems to me clear that the legal issue cannot in practice be divorced from the conduct of international relations and that by entertaining the present claim and ruling on the interpretation of Resolution 1441 the court would be interfering with, indeed damaging, the Government's conduct of international relations. That would be to enter a forbidden area. The situation is closely analogous to that considered in Abbasi at paragraph 107(i), where the court evidently thought it impermissible to require the FCO to make statements that might undermine discussions held with US officials.
ii) A plain purpose of the present claim is to discourage or inhibit the Government from using armed force against Iraq without a further Security Council resolution. Thus the claim is an attempt to limit the Government's freedom of movement in relation to the actual use of military force as well as in relation to the exercise of diplomatic pressure in advance. That takes it squarely into the fields of foreign affairs and defence. In my view it is unthinkable that the national courts would entertain a challenge to a Government decision to declare war or to authorise the use of armed force against a third country. That is a classic example of a non-justiciable decision. I reject Mr Singh's submission that it would be permissible in principle to isolate and rule upon legal issues e.g. as to whether the decision was taken in breach of international law. The nature and subject matter of such a decision require it to be treated as an indivisible whole rather than breaking it down into legal, political, military and other components and viewing those components in isolation for the purpose of determining whether they are suited to judicial determination. The same objections of principle apply to an attempt to isolate in advance a potential legal component of a possible future decision with a view to limiting the Government's freedom of movement when taking the decision itself.
i) The basic rule is that international treaties do not form part of domestic law and that the national courts have no jurisdiction to interpret or apply them (see e.g. R v. Lyons  3 WLR 1562 at paras 27 and 39). The same basic rule must in my view apply to an instrument such as Resolution 1441 which has been made under an international treaty and has been negotiated in the same way as a treaty.
ii) Mr Singh sought to avoid the application of that rule by contending first that this case involves a principle of customary international law (indeed, a principle having the status of "jus cogens") prohibiting the unauthorised use of force and that customary international law forms part of domestic law. It seems to me, however, that recourse to customary international law cannot assist the claimant since what is directly in issue is not a principle of customary international law but the meaning and effect of Resolution 1441, an international instrument not forming part of customary international law.
iii) By way of exception to the basic rule, situations arise where the national courts have to adjudicate upon the interpretation of international treaties e.g. in determining private rights and obligations under domestic law and/or where statute requires decisions to be taken in accordance with an international treaty; and in human rights cases there may be a wider exception. Those examples feature in the discussion in Abbasi at paras 51-57. None of them applies here.
iv) A further exception can arise where a decision-maker has expressly taken into account an international treaty and the court thinks it appropriate to examine the correctness of the self-direction or advice on which the decision is based: see R v. Secretary of State for the Home Department, ex parte Launder  1 WLR 839, 867C-F and R v. Director of Public Prosecutions, ex parte Kebilene  2 AC 326, 341 and 367E-H, both of them cases where the court was willing to have regard to the European Convention on Human Rights prior to the Human Rights Act 1998 coming into force. Again, however, that is not this case. General statements by the Government that it will act in accordance with international law do not amount to a direction in law and the Government has in practice studiously avoided any direction on the interpretation of Resolution 1441.
v) There may be other exceptional cases where the court can properly rule on the interpretation of an international instrument, but none has been shown to be applicable here.
vi) Thus the case falls foul of the basic rule against the interpretation of international treaties by the national court.
i) A declaration as to the meaning and effect of Resolution 1441 would certainly be of general application, in the sense that it would purport to interpret the resolution as a matter of international law. Mr Sales submitted that the court would thereby be ruling on the obligations of foreign states under an international instrument, which it does not have jurisdiction to do. He cited British Airways v. Laker Airways  AC 58 at 85-86, where, in the context of a dispute between the UK and US Governments about the latter's compliance with its treaty obligations, Diplock LJ observed that "[t]he interpretation of treaties to which the United Kingdom is a party but the terms of which have not either expressly or by reference been incorporated in English domestic law by legislation is not a matter that falls within the interpretative jurisdiction of an English court of law". On the face of it, this is simply an expression of the basic rule concerning the court's jurisdiction to interpret international treaties, which I have covered already. I doubt whether it supports the additional objection advanced by Mr Sales or whether a declaration on the meaning and effect of Resolution 1441 would amount to a ruling on the obligations of foreign states.
ii) This leads into the related subject of comity upon which Mr Sales also relied. As to that, I doubt whether a ruling by the national court on Resolution 1441 would itself involve any express or implied criticism of other states. On the other hand, it might cause other states the same kind of problem as it would cause the UK Government in terms of international negotiating position. It might also be used in support of criticism of a state which took action on a basis inconsistent with the ruling. Thus I do not think that one can dismiss the argument on comity, though the weight properly to be given to it is hard to assess.
iii) The simple point, as it seems to me, is that the court should steer away from these areas of potential difficulty in relation to other states unless there are compelling reasons to confront them. There are no such reasons in this case.
LORD JUSTICE SIMON BROWN: For the reasons given in the judgment that has already been handed down, we grant permission to remove, but dismiss the substantive application. The consequences of that in costs I apprehend are now agreed and I therefore simply pronounce that there is an order for the applicant to pay the defendant's costs, subject to detailed assessment if not agreed, and subject to the overriding ceiling of £25,000 as ordered by this court, making a pre-emptive costs order on 5 December 2002, and not as Ms Kilroy's skeleton suggests, £2000. That would have been prescient indeed.
MS STRATFORD: My Lord, in case it is of assistance, after it became apparent that there was, fortunately, agreement in relation to costs, I prepared a draft order.
LORD JUSTICE SIMON BROWN: Is it going to say anything more than I have just pronounced?
MS STRATFORD: No, my Lord, but it contains some other formal parts. It is in slightly different terms --
LORD JUSTICE SIMON BROWN: You have shown it, obviously, to Ms Kilroy?
MS STRATFORD: Yes, my Lord. It is just if it is of assistance to you.
LORD JUSTICE SIMON BROWN: Then, Ms Kilroy, we have in writing the joint skeleton prepared by Mr Singh and yourself on the substantive application you now seek to make. Do you want to elaborate on it or are you content to deal with it on the basis of the written submissions?
MS KILROY: My Lord, I would only make a few short points in addition to that. Simply to say that as your Lordships have recognised in the judgment itself, this is a novel claim which does raise issues of considerable public importance. They raise important points of principle which have not been clearly addressed before. The conclusions that were reached on justiciability have wide ranging implications on these important points of principle. Although your Lordships' judgment is strong, it is uncharted territory and there is, therefore, a realistic chance that the Court of Appeal could take a different view. I would ask, therefore, for permission to appeal.
LORD JUSTICE SIMON BROWN: No, we think that there comes a point in litigation when however momentous the issues raised, it cannot sensibly be permitted to continue. Prospects of this litigation simply do not warrant further argument. No doubt that point has been reached here; you can, of course, always seek to persuade the Court of Appeal otherwise. We therefore make the order in the terms now helpfully put before us, permission to appeal refused.
MS KILROY: My Lord, I do have another application which is in relation to the lodging of an appellant's notice. The normal rule is 14 days but given it is the Christmas period coming up, we would like an extension of that period of time for a further 14 days. I understand from my learned friend that there is no objection to that from the defendant.
LORD JUSTICE SIMON BROWN: Yes, very well, we shall grant it.