The Metropolitan Police’s written grounds of defence in the Miranda judicial review case, published on this blog today, contain a number of significant claims about how they, in liaison with the Security Service, came to stop and question David Miranda at Heathrow airport in August this year.

Lawyers for the police say (para. 28 of the grounds) that the Security Service told the police Miranda was

likely to be involved in espionage activity

which may be a reference to the offence of spying, under section 1 of the Official Secrets Act 1911; and that in the Security Service’s assessment Miranda’s carrying of leaked material fell within the legal definition of terrorism.

According to the police (para. 28) they initially felt there was not enough information to authorise stopping David Miranda but finally

the justification advanced by the Security Service was accepted.

The police also say (para. 31)

it is true that the Security Service wanted to retrieve the material which it was thought that Mr Miranda might be carrying

but that they, the police,

did not unthinkingly execute a Security Service plan.

The Security Service assessment was contained in the final draft of a document called the “Ports Circulation Sheet”, a key passage from which was published in The Observer this weekend and which reads (para. 28 of the police defence):

Intelligence indicates that MIRANDA is likely to be involved in espionage activity which has the potential to act against the interests of UK national security. We therefore wish to establish the nature of MIRANDA’s activity, assess the risk that poses to UK national security and mitigate as appropriate. We are requesting that you exercise your powers to carry out a ports stop against MIRANDA.

We assess that MIRANDA is knowingly carrying material, the release of which would endanger people’s lives. Additionally the disclosure, or threat of disclosure, is designed to influence a government, and is made for the purpose of promoting a political or ideological cause. This therefore falls within the definition of terrorism and as such we request that the subject is examined under Schedule 7.

The police case raises important questions about the extent to which Security Service thinking – specifically the Security Service’s wish to retrieve data from David Miranda – influenced the police’s decision to stop and question him. Miranda may succeed in his judicial review claim if the judges in the Administrative Court believe Schedule 7 of the Terrorism Act 2000 was used for a purpose other than that of determining whether David Miranda was involved in terrorism.

Read the whole police document and my comments on it.

Here’s the Metropolitan Police’s grounds – drafted by Jason Beer QC of 5 Essex Court and Ben Brandon  and Ben Watson, both of 3 Raymond Buildings – for resisting David Miranda’s judicial review claim in the Administrative Court this week. Miranda is challenging the police’s use of powers under Schedule 7 of the Terrorism Act 2000.

My view on the police legal arguments is below, after the viewer. Click on the bottom left of the viewer to see the document in fullscreen view, with my more detailed comments highlighted in yellow.

It’s the police arguments on the “improper purpose” aspect of the case that are most interesting.

The police say (para. 28) there was not enough information to make an arrest because they did not know David Miranda’s role – but also argue that even had there been, that would not have prevented the use of Schedule 7. They say they were initially of the view there was not enough information to stop and question David Miranda, but that the Security Services ultimately persuaded them of the case for doing so, set out in the final draft of the “Port Circulation Sheet”.

They say the Security Service did want to retrieve the material they thought Miranda was carrying – a claim which necessarily casts some doubt on whether the stop was influenced by purposes other than simply determining whether Miranda was involved in terrorism. The police therefore emphasise more than once that they took an independent view, and did not “unthinkingly execute” a Security Service plan.

The police argue that the conditions for use of Schedule 7 were fulfilled, based on the Security Service’s assessment (and their own analysis) that Miranda was potentially involved in disclosures which might risk lives, and which might be intended (at least by Edward Snowden) to influence government and to advance a political cause.

The police’s argument closely reflects the Home Secretary’s that the stop did not bypass other legal regimes giving special protection to journalistic material – those regimes did not apply, and the material in question was not journalistic, they say. The police’s human rights arguments again reflects the Home Secretary’s: they say this is not a case involving the identification of sources, which attracts strong protection under human rights case law. No prior judicial scrutiny is needed before material is seized.

What’s interesting about the police’s defence is the factual detail given in support of the argument that the stop was for a proper purpose. There’s clearly enough here on which the claimants’ lawyers can mount a serious argument that the Security Service’s wish to get their hands on Miranda’s data influenced and “infected” the police’s action with the taint of an improper purpose.

While the human rights arguments may attract attention, it’s this strand of the case on which the claimants stand a chance of winning, and on which in my view the case will turn.

Here’s the Home Secretary’s statement of grounds – drafted by Steven Kovats QC of 39 Essex Street and Julian Blake of 6, King’s Bench Walk – for opposing David Miranda’s judicial review claim, to be heard over two days on Wednesday and Thursday this week. Miranda seeks judicial review of his questioning and detention under Schedule 7 of the Terrorism Act 2000.

My view on the Home Secretary’s legal arguments is underneath the viewer. Click on the bottom left of the viewer if you want to see the document in fullscreen view, together with my more detailed comments.

Essentially of course the Home Secretary’s argument responds to the three points being advanced by the claimants: that Schedule 7 was used for an improper purpose, that Schedule 7 is incompatible in principle with human rights, and that its use in this case breached human rights – most especially freedom of expression.

On improper purpose, the Home Secretary argues that Schedule 7 powers were properly used for the statutory purpose of determining whether he was involved in terrorism, as someone possibly assisting in the disclosure of documents which could endanger lives, in an attempt to influence government and to advance a political cause.

The government’s lawyers argue that the use of Schedule 7 did not bypass rules giving special protection to journalistic material, such as Schedule 5 to the 2000 Act and Schedule 1 of PACE 1984. That’s because they didn’t apply, there being no criminal investigation at that time, and because in any event the data taken from David Miranda was not “journalistic material”. Kovats and Blake argue that David Miranda does not claim to be a journalist. They also argue that the nature of the data – raw leaked documents (or as they put it, stolen documents) – means they were not prepared by any journalist for publication. They compare the data to a stolen manuscript of a novel and accuse Miranda of the offence of handling stolen goods and of intending to use the documents for the criminal purpose of assisting terrorism.

As far as human rights are concerned, the Home Secretary argues that freedom of expression was not interfered with, again because no journalistic material was taken. But even if it was, any interference was prescribed by law – under Schedule 7 – and pursued a legitimate aim of protecting national security, preventing crime, protecting the rights – i.e. the lives – of others, and the prevention of disclosure of sensitive documents.

The government argues that any interference was proportionate to those aims in view of the lack of alternatives to the use of Schedule 7, the urgency and gravity of the situation and the narrow time window the police had in which to act. A key plank of its argument is that this is not a case involving an attempt to identify journalists’ sources, unlike the Sanoma Uitgevers case relied on by the claimants. While in such cases the European Court of Human Rights gives strong protection to those sources, in this type of case, which simply involves the normal application of security provisions in a way that happens to impact upon someone working with journalists, no special protection is given. In particular, the case law makes clear that no prior judicial or independent scrutiny is required before documents are detained.

The government’s final argument is on remedies. Since remedies in judicial review cases are discretionary (in other words, even if the claimants win, the judges are not forced to give them any particular type of outcome, but may simply grant whatever they think appropriate), the court should not give any remedy beyond a declaration that the use of Schedule 7 was unlawful. This is for two reasons: first, because the authorities have a duty and a compelling need to use the Miranda material to protect national security, however they came by it, and should be allowed to do so; and secondly, because it would absurd (“worthy of Lewis Carroll”, as the government’s barristers put it) if the Home Secretary were ordered to destroy her own documents, or recall them from from the US.

Although they set out no separate argument that Schedule 7 is in principle compatible with human rights, overall the government’s case on human rights is pretty strong. Certainly the analysis of the case law here is a precise and strong rebuttal of the claimants’ argument that this case involves the seizure of strongly protected journalistic material and was disproportionate without prior judicial or independent scrutiny. On this aspect of the case, I expect the government to win.

On the improper purpose argument, it seems to me the response is less obviously convincing. Whether the government successfully fends off this judicial review depends on whether its evidence on this point is accepted by the judges, or is successfully undermined by the claimants. This is the aspect of the case I’d worry about if I were in government.

Here’s the full statement of facts and grounds – drafted by Matthew Ryder QC, Edward Craven and Raj Desai, all of Matrix Chambers – in support of David Miranda’s judicial review claim, due to be heard this week. Miranda is challenging his questioning and detention under Schedule 7 of the Terrorism Act 2000.

A summary of my comments on David Miranda’s legal arguments is underneath the viewer. Click on the bottom left of the viewer if you want to see the document in fullscreen view, together with my detailed comments.

David Miranda is running three arguments, essentially.

First he argues that Schedule 7 powers were used in his case for an improper purpose – to get hold of the documents he had on him in electronic form, rather than truly to ask whether he was a person involved in terrorism as required by Schedule 7 paragraph 2. This an argument based solely on domestic public law, not human rights principles.

Second, he argues that Schedule 7 is incompatible with freedom of expression under article 10 of the European Convention on Human Rights, since guidance on its use is unclear and procedural safeguards prior to seizure of material are insufficient, particularly in the light of the case of Sanoma Uitgevers v the Netherlands.

Third, he argues that even if Schedule 7 can be read as compatible with article 10, its use in his case was neither justified nor proportionate to any legitimate national security aim. Earlier his lawyers had intended to argue that Schedule 7 does not apply to passengers in transit, but it seems that line of argument has now been abandoned and will not feature in court this week.

Of these I think the first argument on improper purpose is his strongest, and will most worry the government and police. Whether it succeeds will depend on the judges’ reading on the evidence in front of them – for instance what’s written in the Port Circulation Sheet and intelligence assessments referred to at the hearing last week – as well as their assessment of what government and police witnesses have said in their statements.

The human rights arguments, which rely on the high level of protection given to journalistic material, face more difficulties. They’re also alternatives, though basically elided in the facts and grounds.

Under the Human Rights Act 1998 – and this is a point not always clearly understood even by many lawyers – if a piece of legislation is itself incompatible with human rights, then anything done under it is lawful in human rights terms in the UK. This is why, for instance, prisoners still don’t have the vote: the legislation that bans them from voting has itself been ruled incompatible with human rights, so it’s lawful here to keep denying it to them. This approach seems odd, but it’s been done deliberately so as to preserve Parliament’s ability to make law in the UK in breach of human rights, if it really wants to. The precise provision which has this effect is section 6(2)(b) of the Human Rights Act.

So, to successfully argue that Schedule 7 is incompatible with freedom of expression would be a good “campaigning” result, since it’d have political consequences going beyond this case. But it’d mean that the police acted lawfully in questioning him, in domestic human rights law terms. David Miranda would get nothing for breach of his human rights.  You may need to read that again! I do mean it. Since he’d have been questioned lawfully, he could not be entitled to any remedy in domestic human rights law other than a declaration of incompatibility.

It’s only if Schedule 7 is compatible with human rights that the use of it in this case could be disproportionate and so unlawful in UK human rights terms. So succeed in a the alternative argument that article 10 was breached in his specific case would mean David Miranda might obtain some powerful remedies – he’s asking for all material taken from him to be destroyed and copies recalled from foreign secret services – but it would also mean Schedule 7 passed muster in principle.

I expect the judges to press Miranda’s lawyers on which argument they think is actually correct, and which is their back-up.

But of course as well as his human rights arguments, Miranda is running the purely domestic “improper purpose” argument. If that succeeds then his other remedies – such as the mandatory destruction and recall order – could be granted. And if the judges rule Schedule 7 incompatible as well, he’d have achieved the political impact of a “campaigning” victory against the legislation. So there is a way  David Miranda could have and eat his legal cake in terms of remedies in this case. Remedies in judicial review are discretionary, mind – so if he wins the judges won’t be forced to make any particular order, but will make whatever order they think is appropriate.

In my view the human rights arguments, though they may well take up a lot of this week’s hearing, are the less powerful side of David Miranda’s case. The case law is against him in relation to rights other than freedom of expression, and even as far as freedom of expression is concerned, it’s not obvious that the key case he relies on, Sanoma Uitgevers, really helps. That’s firstly because it focuses on the protection of the identity of journalists’ sources, which arguably isn’t in question here, and because the procedural safeguards it suggests ought to be available before seizure – review of the material in question by a judge or independent reviewer – would seem impossible to operate in a case like this involving many thousands of encrypted documents.

The old-fashioned domestic improper purpose argument seems to me the stronger part of David Miranda’s case. Whether it works will turn what the judges make of the evidence before them later this week.

At today’s hearing, it was clear that PressBoF and its lawyers would be considering, over lunch, the possibility of asking the Court of Appeal this afternoon for permission to appeal against today’s refusal by the Administrative Court of permission for judicial review. I expected we might have a hearing at about 3.

But that hearing never came.

I spent all afternoon checking with the Civil Appeals Office and with the listing office, to make sure no appeal hearing could possibly take place without my knowledge. I hope I’m learning to be some sort of journalist. By 4.30 this afternoon no papers had been filed by PressBoF, and by 5 o’clock no hearing was listed.

Yet some sort of appeal seems to have been requested on the basis of a paper application. Or at least, an injunction was asked for from the judges of the Court of Appeal. I understand PressBoF told the court they needed time to prepare grounds of appeal and asked the court to grant an interim injunction “administratively” to hold the ring in the meantime. I understand that Lord Dyson, the Master of the Rolls, dealt with that application as follows:

I have considered this request with Moore-Bick and Elias LJJ.  We are not willing to grant interim relief “administratively” pending an application for permission to appeal.

This strikes me as having been a most extraordinary application. It must have been very late for me to have missed all intelligence of it at the Royal Courts of Justice today. I tried hard to make sure nothing escaped me.

But more than its lateness, what astonishes me is its nature. Today’s Administrative Court hearing touched on serious issues of public policy and constitutional propriety; and on the claimant’s side it was said that hundreds of years of historic freedom were at stake. To try for an injunction this morning was entirely legitimate. To go direct to the Court of Appeal this afternoon would have been legitimate, too.

But the attempt, at the very last minute – without a hearing, without any member of the press or public having an opportunity to be present, and without even (it seems) setting out grounds for appealing the refusal of permission for judicial review – to obtain an injunction putting a sudden handbrake on the Privy Council and the Queen, simply on the basis of a paper application: it’s breathtaking. I cannot imagine how PressBoF could have thought such an application might succeed.

Having arrived in good time I was disappointed to find that the walls of Court 27 seem to be impenetrable to mobile phone signals. This meant that, while a fascinating case was unfolding before me, I could not live-tweet it as I had originally intended. I did tweet excessively during the two breaks and afterwards, but have written this to give a more coherent account of what happened today.

Matthew Ryder QC for David Miranda was making three applications: first, for further disclosure of evidence relating to exactly who made the decision to detain him under Schedule 7 of the Terrorism Act 2000; second, to be allowed to cross-examine witnesses at the substantive hearing of the judicial review; and third, to join Glenn Greenwald’s separate claim to these proceedings.

For the Home Office (Steven Kovats QC) and Metropolitan Police (Jason Beer QC) there was an application for public interest immunity for various documents that, on their submissions, it was improper to disclose given the risk to national security.

Helpfully for those listening, Matthew Ryder outlined at the start of the proceedings what the grounds of Miranda’s claim were. There were originally four:

• That the authorities had used their Schedule 7 powers for an improper purpose when they detained David Miranda;
• That those powers did not apply to individuals in transit through the UK and with no intention of ever entering the country;
• That the exercise of Schedule 7 powers in this case and generally was incompatible with human rights;
• That the use of Schedule 7 powers in this case was not proportionate to any legitimate aim that the authorities may have had.

But Matthew Ryder indicated that ground two was no longer going to be advanced at the full hearing.

Lord Justice Laws at this point made the observation that if the improper purpose ground fails, then that naturally defeats the proportionality ground as well. I am not sure that this necessarily follows, and it will be interesting to see how the court comes to a decision on this if they do decide against David Miranda on the first ground.

Having outlined the three remaining grounds Matthew Ryder submitted that disclosure was necessary to allow David Miranda’s legal team to determine who made the decision to detain, what was their state of knowledge, and on what documents they had relied in coming to their decision.

It appears from Ryder’s submissions that there were two Examining Officers at the airport, but that they were being given instructions by officers based in London. These officers, Acting DI Woodford and Det. Superintendent Stockley, had intelligence that may or may not have been shared with the Examining Officers. Miranda’s legal team wanted to know exactly who knew what when in order to understand the authorities’ broad assertions that the Schedule 7 powers were exercised lawfully.

Ryder made reference to the case law governing powers of arrest. A police officer exercising his or her power of arrest cannot derogate from having made the decision himself. If he or she is acting on the instructions of some superior officer there must still be a prima facie examination by the arresting officer of whether or not the arrest is necessary and based on reasonable suspicion that an offence has been committed.

I imagine, though cannot be sure, that this might be an argument deployed at the full hearing. Does the Examining Officer need to exercise the power themselves without limiting their discretion by blindly obeying orders; or does the complex nature of intelligence and espionage mean that Schedule 7 powers are not that similar to arrest powers in their exercise?

As an interesting aside, a comment made by Mr Justice Ouseley was that the witness statements served so far were not statements of fact but were actually argument. Perhaps this will be explored more fully at trial, with questions being asked regarding what knowledge and assessment were made at the time and not what ex postfacto rationale can be given for the detention of David Miranda.

Linked to further disclosure was the request for cross examination of witnesses. Miranda’s case was that it was important to cross-examine witnesses so as to hear how and why a decision was made to exercise the powers, and what considerations were in the contemplation of the authorities at the time.

It appears that Det. Supt. Stockley has given two statements the first of which says that –

the acts of terrorism I had in mind [when considering Schedule 7 powers] were those that would put lives at risk or cause serious harm to electronic systems.

He goes on to reference the PRISM leak which has been extensively covered by the Guardian. It seems to me that there will be considerable argument about whether or not this was a relevant consideration, given that the NSA/Snowden revelations have been widely reported so as most individuals have an appreciation of exactly how much data is being collected by the NSA and GCHQ; has this damaged their capabilities?

Laws LJ interrupted here to say that, so far as he could see, the narrow issue to be determined here was the Terrorism Act 2000 and whether any acts by Miranda could be said to fall within the definition of terrorism. Laws LJ went on to say that

this muscular attempt to expand the debate into other areas does not serve your client.

Procedurally, Ouseley J was concerned that this was not a proper place for the cross-examination of witnesses to be decided and it should instead be left to the trial:

are you not asking us to decide this prematurely Mr. Ryder?

he asked.

Ryder responded by saying that he and his legal team had in fact been criticised by the government’s lawyers for not requesting a determination on this matter soon enough. “Ah“, said Laws,

the price we pay for an adversarial system. And one worth paying.

Despite this, Laws suggested he needed no further information than that so far provided in order to decide the legality of the authorities’ actions.

Matthew Ryder asked that Glenn Greenwald’s claim be joined to the proceedings. There was not much argument on this point other than that it would be most helpful to join the claim to deal with them together. Laws LJ did say that Greenwald had made some

fairly grand assertions

in his witness statements.

Matthew Ryder’s final point was that the issue of Schedule 7’s compatibility with the ECHR had been decided in Beghal v DPP but that Miranda would still be going ahead with this point. It may require a three member Divisional Court to overrule another three member Divisional Court. In Beghal v DPP Mrs. Justice Swift had sat; she was married to Mr. Justice Openshaw. Was this going to be an issue? Laws LJ quickly interjected to say that this was a cause for celebration, not complication.

There was limited response from either of the authorities’ silks. It is likely that they were saving their real ammo for the PII closed hearing. Steven Kovats QC for the Home Office did however say that the “baseline” of all the decisions made around Miranda’s detention was the sheer amount of material that Edward Snowden had taken. This suggests that the authorities know exactly what he has, and that we have not yet seen the most damaging allegations. Alternatively, that those journalists with this material are behaving in a responsible way in not publishing the more damaging revelations.

Only the defendants’  barristers were allowed in court during the PII application. This application did not take long, after which judgment was read. Laws LJ referred interested parties to the earlier judgments for the facts of the case and began by outlining what he viewed to be the central aspect of the case: were the Schedule 7 powers exercised for a proper purpose?

On his view the best evidence as to this purpose was the “PCS” or Port Circulation Sheet. This said that

intelligence indicates that Miranda is involved in espionage activity which is a threat to the UK.

Furthermore the PCS asked that officers consider using their powers of detention to detain Miranda to assess any risk he may pose. Most interestingly, the PCS stated that Miranda had political aims and intended to influence governments. Those two elements are key in defining Terrorism under the 2000 Act.

There was also an intelligence assessment, served in redacted form, that said

We strongly assess that Miranda is carrying material that will aid Greenwald in releasing NSA material.

This assessment went on to request that Examining Officers use their ‘stop’ powers as a way of mitigating any risk that may be posed to UK security. Finally, it asserted that Edward Snowden holds large amount of GCHQ data whose further release would severely undermine GCHQ capabilities.

As a result of the above, and on the basis that the claim could be brought on the materials so far provided, the PII claim would be granted. All three of Miranda’s applications were refused. The only glimmer of success for Miranda was that the court asked that the two senior officers attended the trial and cross examination can be revisited then.

This is shaping up to be an interesting hearing next week.

I wish I could have been there for this hearing today. But I had to choose between this and the PressBoF hearing, listed for the same time. Fortunately, Alex Pritchard-Jones could be there, and he followed the hearing for us. This was a tough mission: it was a complex hearing with multiple applications, some of which Alex was excluded from as were the public generally. But here are his tweets.

I was in court 68 at the Royal Courts of Justice this morning to hear the Press Standards Board of Finance’s urgent application for interim relief – an injunction – to stop the government from getting the cross-party press regulation Royal Charter granted by the Queen in Privy Council this afternoon. The Privy Council was due to “meet” at 5.30 (these are very short meetings in which everyone stands, I’m told; the meeting would be a constitutional formality); the hearing began at 10.30.

Right from the start, Lord Justice Richards made clear he thought the court could deal not only with the application for the injunction, but with the question wether permission for judicial review should be granted. That surprised me a bit, and I suspect it surprised some others in court.

Richard Gordon QC, for PressBoF, understandably put his emphasis on his strongest point: the fact that the Department for Culture, Media and Sport never communicated to PressBoF in advance the “criteria” which would be applied by ministers in deciding whether to recommend that its, PressBoF’s, draft Royal Charter be granted. As I say, the Privy Council stage is pure formal dignity. The reality is that ministers, in their recommendation, make the decision.

Richard Gordon had to concede, under some pressure from Lord Justice Richards and Mr Justice Sales (who between them were quite an insistent bench) that the grounds he was advancing – that PressBoF had been denied the right to be heard, that there’d been a breach of a voluntarily undertaken duty adequately to consult, and that there’d been a breach of a procedural legitimate expectation – all amounted to much the same thing.

But it all came back, he continued to argue, to the failure to communicate criteria. PressBoF, he argued, has been unable to focus any representations on the concerns ministers had about their draft Charter. It would have simply had to stab in the dark, he said, quoting Lord Justice Sedley. And anyway, it was never actually given a chance to make any representations.

As far as interim relief was concerned, Richard Gordon argued that his case was a seriously arguable one; and that the balance of convenience weighed in favour of an injunction because of the great public interest in ensuring any decision on press regulation, changing hundreds of years of history, was properly made. He offered some rousing phrases – soundbites, if you like – about the unique nature of this case and the constitutional importance of the issues at stake.

Lord Justice Richards put to him the point I made in my post of yesterday: wasn’t it odd that he wanted an injunction to stop the government’s Royal Charter without (as things stood) making any legal complaint about it? On PressBoF’s case as set out in its grounds, it wanted to injunct decisions it did not say would be unlawful.

Richard Gordon’s response was twofold. First, he argued that proceeding with the cross-party Charter today would be unlawful – he stressed the interrelatedness of the Charters and the legal issues, and argued it would be unlawful to proceed with one until the other was lawfully considered. Second, he offered an undertaking to seek judicial review of the government’s cross-party Royal Charter, if the court thought that necessary for interim relief.

Gordon was also put under a lot of pressure by the judges about the threshold test for an injunction against the Crown. Did he concede he needed to establish more than simply a seriously arguable case? He seemed at first to agree with this; but as his submissions went on he seemed to resile from that, arguing that in a way the public interest (which he saw as unequivocally favouring his clients) informed the threshold and the balance of convenience. It became clear later that the judges, too, felt he’d backtracked. Funnily enough, though this was a point on which Richard Gordon seemed most under pressure from the bench, it was also a point he ultimately won.

Natalie Lieven QC, for the government, argued confidently that a high threshold was needed for an injunction against the Crown in these circumstances: a strong prima facie case. The authorities, she said (Scotia Pharmaceuticals and M v Home Office) established that clearly. And the public interest, and so the balance of convenience, favoured no further delay in implementing the long-debated Leveson report.

As for the merits of the underlying judicial review, she saw this as a case “not with any merit at all”. The duty to act fairly did not require much in a case like this, and anyway, the press had had ample opportunity to argue its case both during and after the Leveson inquiry. PressBoF could have made whatever representations it wanted in supported of its draft Charter, and it was invited to do so. In reality, they chose not to do so, preferring to wait to react. They had played a game, she said. Anyway, Hacked Off had been able to make full representations about the press draft, If they could, why couldn’t PressBoF?

She made I think a strong point, that the “lack of consultation” argument came oddly from PresBoF. It was treating the entire process as though it were about the determination of an individual application made by it. Yet in such a case (for instance in a planning context) it would be others, not the applicant, who might have a right to be consulted.

Richard Gordon made few detailed points when he got up again: he referred again to his strongest point about the “criteria”, saying it was unfair to characterise PressBoF’s approach as disingenuous and to expect them just to “throw out information”. Looked at as whole, he said, the process was wholly legally defective.

The judges retired only for about ten minutes before Richards LJ gave judgment. He saw no arguable case for judicial review. In reality PressBoF had had ample opportunity to contribute its ideas and representations. The issues were well known, and PressBoF must have known what they were.

There was no duty to inform PressBoF in advance, he said, of the reasons why its draft might be found wanting; the Privy Council was plainly entitled to make its decision without going through the additional loop PressBoF seemed to want. None of the reasons ministers gave for not recommending the PressBoF draft can have come as a surprise. Not was there any evidence that, had a different process been adopted, a different result would have been reached. It would have made no difference.

Permission for judicial review was denied, and so the injunction application fell. But although there was no higher threshold for an injunction in this type of case (this was the point I mentioned earlier that Richard Gordon won, against Natalie Lieven’s more confident submissions), PressBoF’s case was “at best, weak” and in any event there was a strong public interest in allowing the Privy Council to consider the cross-party Charter. So Richards LJ wouldn’t have granted an injunction in any event.

Sales J agreed.

Costs were awarded to the government, summarily assessed at £13,545.50 if my note is right. The judges clearly felt this was a very reasonable figure (and it may simply have covered counsel’s fees rather than the costs of government lawyers’ time).

Richard Gordon’s application for leave to appeal was refused. He went away with his clients (who seemed to me surprised at the extent of their defeat – they may have expected to be refused an injunction at worst, but not permission for JR), no doubt to consider the possibility of an urgent appeal.

The advocacy today was impressive. Richard Gordon has a difficult argument to make, I thought, facing a judicial headwind at times, and won on one or two difficult points that did not, however, win the day. I felt I was watching a highly skilled player bluff with a weak hand. Things were less uphill for Natalie Lieven, and she failed to bring home points she made strongly and on authority. My one criticism of the judges is that they really ought to have challenged her more stiffly on the question of the threshold for an injunction, before simply rejecting her argument. But she rubbished the underlying judicial review claim very effectively, and obviously won on that.

As far as the judges were concerned, I was impressed with this bench (as I used to be impressed by Philip Sales when he was a barrister), by the clarity of their thought and by their insistence on clarity from the advocates.

Today was a serious defeat for PressBoF. Not only did they not get their injunction: their entire judicial review was killed stone dead. I understand there’s some chance they may still try to get permission to appeal direct from the Court of Appeal. But I think it’s a lost cause.

Of course, they may still try a judicial review of the grant of the cross-party Charter.

As I said in my last post, the Press Board of Finance’s grounds for judicial review make clear that it is seeking an injunction – “interim relief” – to stop the government getting its preferred cross-party Royal Charter granted by the Queen in Privy Council tomorrow. PressBoF will appear before Lord Justice Richards and Mr Justice Sales (two judges who were both once First Treasury Counsel, and appeared on the government side in just such high-profile cases as this) at the High Court tomorrow at 10.30.

The government could have offered an undertaking to postpone presentation of the Charter – though there’s no legal reason why it had to, and if it had, the press would have achieved its main immediate aim: further delay.

While I think PressBoF’s case for an interim injunction is initially attractive, it may not necessarily succeed.

It’s important to realise that PressBoF is technically challenging two things, not one: it’s challenging –

• ministers’ recommendation to the Queen to reject the press’s draft Charter, and
• the Queen’s Order in Council (as PressBoF calls it) giving effect to that recommendation.

The reason it’s challenging both is that there’s a possible legal argument about whether Her Majesty’s order (if it is an order) can be challenged in law; whether it’s amenable to judicial review, as a lawyer might put it. It seems that the government’s lawyers have made that very argument in correspondence. I think PressBoF’s barristers Richard Gordon QC and Sarah Love are probably right (see paras. 51–54 of PressBoF’s facts and grounds) that the order can be challenged in law because of the House of Lords ruling in Bancoult in 2008.

But given the technical argument, it makes sense for PressBoF to challenge ministers’ recommendation, too. PressBoF wants the recommendation declared unlawful, and the order (as PressBoF calls it) quashed.

And we also need to remember that the Queen is due to make an order tomorrow, presumably to grant the cross-party Royal Charter on ministers’ recommendation. It’s this that PressBoF wants delayed on an interim basis.

Against that background, the argument for an interim injunction runs as follows (paragraphs 107-9 of PressBoF’s statement of facts and grounds):

Pressbof disagrees with the Defendants as to whether an Order in Council is amenable to judicial review. However, if the Court were to find the Defendants’ view to be correct but the Government Charter were to be granted (whether at the meeting of 30 October or on another occasion), there would obviously be a risk of the Court finding the Recommendation to be unlawful but Pressbof then being confronted with a non-justiciable Order in Council granting the Government Charter.

In other words, if the Defendants are correct as to the justiciability of Orders in Council of this nature, there is a risk that this claim may succeed in substance but turn out to have been futile. Were that to be the case, two decisions of considerable constitutional significance (namely, to reject the Press Charter and grant the Government Charter) would have been taken following an unlawful recommendation but there would be no recourse, whether for the press industry or for the wider public.

Accordingly, to protect against the risk of this occurring, Pressbof seeks interim relief in this claim against the Government Charter being considered and/or approved, whether at the meeting of 30 October 2013 or otherwise, pending the conclusion of the claim.

As I say, on the face of it this seems reasonableness itself. If a Royal Charter is granted tomorrow, it’ll be granted – and only amendable by two-thirds majorities in each House of Parliament. So even if PressBoF succeed in establishing that rejecting its draft Charter was unlawful, a court ruling to that effect will do it little good. Any further submissions would achieve nothing even they convinced ministers, if Ed Miliband was unmoved. At first blush, then, it seems obvious that judges may well be sympathetic to granting interim relief in order to preserve the status quo for the time being.

But there’s something a bit odd about this. PressBoF is not at the moment making any claim that the cross-party Charter is itself unlawful, or that granting or recommending it would be unlawful. It could do – it could now be seeking a prohibiting order stopping the grant of the cross-party Charter on the basis that it’s unlawful in itself (on human rights grounds for example) or that procuring its grant would be unlawful in a collateral sense because of the underlying unlawfulness of rejecting the press’s own Charter. But PressBoF doesn’t say that, as things stand. Perhaps that’s because all its stakeholders cannot agree on the point. But for whatever reason, PressBoF does not make the argument.

Isn’t there something funny about asking the courts to restrain ministers from doing something you do not even claim is unlawful? I expect tomorrow’s argument to be seriously interesting, and will be surprised if the arguments do not include discussion of this point.

By the way, I keep doubting whether the “order” PressBoF is challenging really is an order, really because looking at the official record Her Majesty doesn’t appear to have ordered anything. To be fair, the Privy Council’s official minute describes it as an “order”. Still, there must be doubt that the Queen orders anything when she does not, as here, grant a Charter that’s been asked for. It seems to me that she has exercised no prerogative power at all.