My research is variously drawn on by practitioners. When asked what difference my research has made, I point to such changes as post-legislative review and the provisions of the Constitutional Reform and Governance Act 2010. My advice was also sought in respect of Iraq and how it could establish a second chamber. I have just been catching up on developments in another area where my advice was sought – that is, as an expert witness in a court case in the USA.
In this country, the All-Party Parliamentary Group on Extraordinary Rendition was established in 2005 by Andrew Tyrie MP to examine extraordinary rendition and related issues. It has its own website and has been extremely active. One step it took was to seek information from the US Department of Defense under Freedom of Information legislation. The Department resisted the request on the grounds that the all-party group constituted a non-US ‘government entity’, and it is precluded by law from providing information to such a body. The all-party group pursued the matter in the US District Court for the District of Columbia (All Party Group on Extraordinary Rendition v US Department of Defense et al). I was approached by the all-party group to serve as an expert witness and provide written evidence to the court on the role of Parliament, all-party groups and Members of Parliament in relation to Government in the United Kingdom. I prepared a detailed submission which, with the accompanying source material cited in the submission, resulted in a massive file. I made clear that Parliament was distinct from Government and that all-party groups were at a further remove in that they were unoffical bodies and not agents of Parliament. Individual Members of Parliament, those not appointed to ministerial or other offices by the Prime Minister, were not representatives or agents of government and as individual backbenchers were not agents or representatives of Parliament. This submission was made in April of last year. I was one of only two expert witnesses utilised: the other was the former Attorney General, Lord Lyell QC.
The US Department of Defense responded, arguing an extremely expansive definition of ‘government entity’ – basically arguing that MPs are ‘representatives’ of Parliament and that Parliaments are government entities. The all-party group’s lawyers have contested this expansive definition, noting that it would mean that individual members of Congress were ‘government entities’.
The outcome of the case has potentially significant implications for our knowledge of what has occurred in respect of extraordinary rendition.