Expert witness

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.

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About Lord Norton

Professor of Government at Hull University, and Member of the House of Lords
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8 Responses to Expert witness

  1. ladytizzy says:

    Fascinating!

    I appreciate that MPs are not agents of Parliament and are nominally elected representatives of their constituencies. However, that MPs are not representatives of Parliament is a noteworthy distinction and, thus, prevents the cascade into ‘government entities’ territory.

    In your penultimate paragraph ‘Parliament’ is pluralised. Was that deliberate, in the sense that those elected elsewhere by means of one form or another of PR might well be regarded as representatives of Parliament?

  2. Carl.H says:

    A contentious bone if ever there was and certainly one that mirrors argument on the LoTB. However I feel it will always remain so even though one particular agency or Court may decide one way or the other. I’m afraid I side with the US Dept, as I have done for sometime, however definition of a word is a personal issue really. What does Gonvernemt mean to the likes of Zarove ? And where do you start to explain the heirachy, institution and history of a controlling entity to someone. I suppose one could start by asking the question is a voter part of Government and work your way to the top to find where it gets misconstrued.

    • Lord Norton says:

      Carl.H: The debate before the court revolves around the intention of Congress and how the term has been interpreted in US law.

      • Carl.H says:

        Isn’t it about bloomin time we sorted out our statute books so there’s nothing ambiguous in them for Judges to put straight. It seem’s everything from Parliament nowadays goes straight either to the Supreme Court or the European Court. Now we’ve the American Court system involved.

        Judges cannot even sort out a divorce amicably and fairly.

  3. Frank W. Summers III says:

    Lord Norton,

    First, if your side prevails the Federal agencies (more than just the DOD answered your original filing I think) will get equitable relief and injoin the delivery of any documents or information pending an appeal I would imagine. They will likely do the same thing if you win the appeal pending the Supreme Court deciding to grant cert. Then the relief will continue while you face the Supremes if cert is granted. These agencies are here acting (or will argue and prevail that they are) acting jointly and severably as the sovereign USA in this case. The sovereign has no obligation to share any information or disclose anything and a general duty not to do so except for certain areas:

    1. A duty to advertise new laws, contracts, regulations and similar matters.
    2.A general duty to the well being of the public on matters of great value to the public and negligible importance to the sovereign.
    3.When the sovereign is accusing and prosecuting anyone it has a very high duty to disclose its grounds, methods and objectives.
    4. In a lawsuit it is subject to the laws of discovery where there is no strong countervailing sovereign interest allowing it to assert immunity.

    NONE OF THESE THINGS ARE LIKELY TO APPLY TO YOUR CASE.

    There is then the FOIA and any treaty obligations with the UK. You have not asserted the Treaties (I think) as a basis for disclosure. So we are left with FOIA.

    FOIA it will be argued is narrow black letter law and the standard will be very high for you to prove you are entitled to FOIA privileges rather than being high for them to show that you are not. FOIA was not for diplomacy some will insist and that this value informs all else.

    These are of course guesses. But I think you have met a challenge here. Perhaps your best advantage and worst disadvantage lies in the political realm. The actual person who occupy the opposing posts will act distinctly from some other person and their lawyers and the courts will have to follow their lead.

    Should you win an unmitigated rout which is “on all fours”. Then your first batch of documents will be probably 75% or more blacked out and you will have to seek equitable relief (in the same system as laws here) in order to get more than the basic structure of information flow. Should this proceed at a normal pace then your December 2009 filing will probably have papers passed around until December 2018 or later. However, a settlement may be reached at any time prior to that. Just guessing of course.

  4. Princeps Senatus says:

    Dear Lord Norton,
    Can I ask you to comment (and possibly write a blog post) on the STV/FPTP referendum in British Columbia yesterday?
    As per the CBC.ca website, STV lost to FPTP 40% to 60% or thereabouts. That in a province that is heavily left leaning and the Liberals and NDP winning all the seats between themselves, with the Conservatives getting not even a single seat.
    Are there any learnings from that referendum for our referendum in two days time?

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