Jonathan Sumption QC may have a brain the size of a planet but that hasn’t stopped his clients in the British government from distancing themselves from the infamous letter he sent to three senior appeal judges on Monday.
In an unprecedented move, the Director General of MI5 has written a newspaper article insisting that the Security Service “co-operates willingly” with the parliamentary Intelligence and Security Committee.
The suggestion that “officials of the service deliberately misled Intelligence and Security Committee” came in Sumption’s letter inviting the judges to remove paragraph 168 of their judgments in the Binyam Mohamed case. Ironically, the whole point of the court’s ruling was that seven paragraphs should not have been removed from an earlier judgment.
Exactly what Lord Neuberger said in the original version of paragraph 168 is not in the public domain; the Master of the Rolls modified his draft before giving judgment on Wednesday. But several sources have told me that Sumption exaggerated its effect when he described the paragraph as, for example, “an exceptionally damaging criticism of the good faith of the Security Service as a whole”.
The over-egging comes naturally; Sumption is a powerful advocate and he has simply put his case at its highest. His assertion that Lord Neuberger’s observations “are likely to receive more public attention than any other part of the judgments” would probably not have been true if he had not drawn attention to them.
Worse than this, though, is the thinly-veiled attack on his opponent, Dinah Rose QC, that has appeared on the Lawyer website. The magazine reports that she was “forced to apologise” to the court “after it emerged that she had passed the letter to the press after the judgment was handed down”.
In fact, Rose was fully entitled to make copies available to reporters once the letter had been discussed in open court.
Rule 31.22 of the Civil Procedure Rules 1998 says:
(1) A party to whom a document has been disclosed may use the document only for the purpose of the proceedings in which it is disclosed, except where
(a) the document has been read to or by the court, or referred to, at a hearing which has been held in public…
The rule goes on to say that the court may restrict publication at the request of a party. But no such application was made by Foreign Secretary’s counsel Pushpinder Saini QC. Sumption himself was not in court for the hearing on Wednesday.
The onus was on Sumption or Saini to request confidentiality, not on Rose to seek the court’s consent for acting on instructions. Her apology to the court was a courtesy, not an admission of wrongdoing.
Nobody emerges well from this episode. The judges appeared distinctly edgy on Wednesday but they were entitled to assume that a letter marked “cc Dinah Rose QC” would have been shown to her at the same time as it was shown to them. They were also entitled to assume that a letter sent to them by one party to a case would be circulated to all other parties. Neither of these happened.
The court has asked for written representations on whether paragraph 168 should be published as originally drafted. In the interests of his clients, Sumption should support publication. And if he really wants to write Lord Neuberger’s judgments for him, he should resign from the Judicial Appointments Commission and apply for a job on the High Court Bench. Who knows where he might end up?