The Case of the Missing Documents
September 17 2019
My very first case as a junior solicitor with Slaughter and May was the litigation around the International Tin Council, a long-since forgotten entity set up by various countries via international treaty to control the price of tin. Its attempts to manipulate the price of tin were unsuccessful and it went bust owing a number of banks and commodity brokers large amounts of money. They sought to recover their losses from the countries which had set it up. Ultimately the Lords (as it then was) ruled that they could not do so, the entity being legally separate from the countries behind it.
One of the many issues explored at length in the case was whether the matter was justiciable at all. Justiciability seemed a strange – if fascinating – concept which provided hours of interest in the Court of Appeal and then the Lords. And then never came up again in any of the cases I worked on. It seemed to be one of those esoteric pieces of knowledge, of interest only to a few.
Until now – when it is all over the news in relation to the prorogation of Parliament.
But in all the fuss about whether the courts can review the government’s decision, one of the issues which has not perhaps had the attention it should has been Parliament’s request for documentation relating to the decision to prorogue, a request which has been denied by the government. That request arose out of a belief – however well-founded or misguided we don’t yet know and may never find out – that there was something iffy about the decision, that it may have been done for improper motives or in a questionable manner. The government’s refusal to comply with Parliament’s request and to provide any sworn evidence at all in support of its case to the courts has not allayed those fears. And yet those missing documents might well turn out to be highly relevant, given the inferences which were drawn by the Court of Sessions from the absence of any sworn evidence from the government in support of its position.
Why this might be so and why how a decision is arrived at is as important as what the decision is are explored further in this article.
Whatever the outcome of the Supreme Court’s decision, trust is essential to the good functioning of any organisation, especially government. It should not need a court case to establish that.