Transcripts For BBCNEWS Victoria Derbyshire 20240714

So lets think about some real world use cases. So, i am in the Counter Terrorism business and i know that there are five individuals in central london, where were sitting right now, that want to do harm on a massive scale to the public. Would you have public support to use facial recognition to try to intercept that group of individuals before they could do harm . I would suggest almost categorically that you would. An opposite example now. An individual is being kicked out of the pub for drinking too much on a saturday night. The pub has taken a photo of that individual. Should that individual be prevented from getting into that establishment and other establishments because of that incident . I think you would have very little public consent for that example. Do you support it . And we have more news of a nursery nurse who has been released from jail after serving ten years. That news is breaking now. Hello. Welcome to the programme. Were live until am this morning. What do you think about a camera scanning yourface as you walk down the street . Were talking this morning about a call by more matt says we should not be normalising the surveillance of citizens. Forjohn on twitter it is simple, i back its use because i do not break the law. And ellie tweets this. Do get in touch, we will talk about it more after the news. You can text us. Or send us an e mail. Now for a summary of the news. Here is annita mcvey. The outgoing european president Jean Claude Juncker has told the outgoing european president jean claudejuncker has told the Eu Parliament he cannot say that Real Progress has been made in brexit talks. He said that britain has come up talks. He said that britain has come up with no concrete proposals to replace the backstop, that is the contingency plan to avoid a heart border in ireland. Politicians in strasbourg will vote later on a resolution calling on the uk to leave the eu with edale. Resolution calling on the uk to leave the eu with edalelj resolution calling on the uk to leave the eu with edale. I will not be able to tell you, looking you straight in the eye that any Real Progress has been achieved. The Supreme Court in london will continue to hear legal challenges this morning over the suspension of parliament. Lawyers representing the Prime Minister will argue that his advice to the queen to Prorogue Parliament was unlawful and that the court should not interfere in political matters. But lawyers representing the snp mpjoanna cherry have said that scotlands highest civil court was right to rule the action unlawful. Live recognition facial technology should be stopped in its tracks, campaigners say. Privacy campaigners have said that it is inaccurate, intrusive and fridges on the rights of individuals to privacy. The first Domestic Abuse commissioner for england and wales has said that she is relieved that the Prime Minister has pledged to reintroduce a new law on the issue. Nicole jacobs told the bbc she expects to save Domestic Violence bill included any new queen speech when parliament returns. The First Court Hearing is being held any prosecution of a paratrooper over bloody sunday in 1972. The man known as soldier f is facing two murder charges and five counts of attempted murder. Jeremy corbyn has said that labour is the only party promising to let people decide the fate of brexit through a second referendum. Mr corbyn has set out plans for what he called a sensible brexit deal and says if he was Prime Minister he would carry out whatever the people decided in a eu referendum. And that is a summary of our main story so far. Back to you, victoria. Thank you very much. Let us bring you that breaking news. This programme has learned that the paedophile nursery nurse Vanessa George has been released from jail this morning after serving ten years for sexually abusing babies and toddlers in her care. She has been released after ten years. The minimum sentence she was expected to serve was seven. Minimum sentence she was expected to serve was seven. She minimum sentence she was expected to serve was seven. She qualified for release because the parole board has said that she is no longer a danger to the public. There are certain conditions to her release. She will not be allowed in the devon and cornwall area and she will have restrictions on her internet use, and she will never be able to work with children again. So, Vanessa George released from jail after serving ten years for sexually abusing babies and toddlers in her ca re abusing babies and toddlers in her care at a nursery called little heads in plymouth in 2008 and 2009. Little teds. This programme can exclusively reveal that more than 60 politicians, academics, barristers and Campaign Groups are calling on Police Forces and private companies to stop using Live Facial Recognition Technology for public surveillance immediately. This kind of Live Technology can scan your face as youre walking down the street and check it against a watch list in real time. So its not like facial recognition used at passport gates. Critics say the live element means its inaccurate, intrusive and infringes on an individuals right to privacy. Those that make and use the Technology Say its helping protect the public and can catch people like terror suspects. So what exactly is Live Facial Recognition Technology and how does it work . Were going to debate its use in a moment here in the studio, but first do watch this, from our reporter catrin nye. Many of us have already used facial Recognition Technology. So this phone registers my face. And then it can unlock using it. Automatic passport gates also use it, and around the world, Police Forces and private companies are adopting this technology. But privacy campaigners argue the tech has moved faster than any regulations to control it, and its being adopted in the uk before its been properly scrutinised by politicians. Live facial recognition, that works in real time, has worried people further. Where you walk past the camera and, in real time, without you even necessarily knowing about it, yourface is being checked against the watch list. In the uk, there have been trials of Live Facial Recognition Technology by police in london and south wales. This was the last of ten trials by Londons Metropolitan Police and was filmed by the bbc click team in january. How would you like it if you walked down the street. . when one man covered his face, things got heated, and he ended up with a £90 fine for what Police Called disorderly behaviour. If im going to cover my face, ill cover my face. Its for them to tell me not to cover my face. Ive got a now £90 fine. There you go. Look at that. Thanks, lads £90. The police here argue that not trialling this technology would see them left behind. We are completely aware of some of the concerns raised and what were doing with these trials is actually trying to understand those better so we can actually protect human rights, but also keep people safe at the same time. Ive come to a private Company Supplying this tech, to see how it works. Digital barriers provides facial recognition worldwide, mostly to police, the military and other Law Enforcement organisations. What we are able to do is recognise people against watch lists as they walk past cameras, essentially. Theyve set up a demo for me. Two of their employees are walking down the street outside the system has their photos, theyre on a watch list. So it should and it does identify them. Every time a face is detected, the facial Recognition Technology will compare that face against the watch list and if it detects a match, then youll see that match recorded. And whats happening to the people who are coming up as unknown . So, theyre ignored. So they are not recorded, theyre not registered. On this piece of kit, you can adjust the threshold of accuracy at which a face will be recognised. Basically change how close the face has to look to the picture you have on record. This depends on how much you want to catch a person. If you believe that there is an active terrorist cell operational in a mainline railway station, thats when you might set the threshold low. If all youre doing on a busy street is looking for people that potentially have skipped bail, public consent at that point is to set the threshold higher. We also put my image into the system to try it on a new face. So shes been picked up consistently. Very good level of confidence. Is it not completely reasonable that people are worried about the hugely expanding use of this technology with very little public scrutiny . So, lets think about some real world use cases. So i am in the Counter Terrorism business and i know there are five individuals in central london, where were sitting right now, that want to do harm on a massive scale to the public. Would you have public support to use facial recognition to try to intercept that group of individuals before they can do harm . I would suggest almost categorically you would. Give you the opposite example. An individual has been kicked out of the pub for drinking too much on a saturday night. The pub has taking a photo of that individual. The pub has taken a photo of that individual. Should that individual then be prevented from getting into that establishment and other establishments because of that incident . I think youll have very little public concern for that example. Public consent for that example. Unfortunately, there is no clarity, there is no regulation that governs either use case. But privacy campaigners see things differently. Big brother watch have released this statement, along with more than 60 politicians, academics, barristers and other Campaign Groups asking for an immediate stop to the police and private Companies Using this technology for public surveillance. I, for one, think we dont want to live in a surveillance state, so what were doing is putting this to government and parliament to say, please can we open this debate and have this conversation . But, for goodness sake, whilst that conversation is going on, there is now a crisis, a surveillance crisis on our hands that needs to be stopped urgently. And thats what everyone signing this letter is asking for. In our demo at digital barriers, the computer was often slower at identifying the black woman in the street than the white man. This doesnt mean the system was mis identifying her, but it does mean in this instance that it was at least slightly less effective on darker skin. So theres been a lot of studies that show that facial Recognition Systems dont work as well on people of colour and women generally. This can be for a number of reasons, such as colour contrasts on the faces of people of colour. Also these systems can be confused by cosmetic make up. And also some of these systems havent been trained with enough diverse datasets of people from different demographics. You could see a situation where you are identifying innocent individuals who are from a particular minority, so people of colour, which means that theyll be questioned by the police even though theyre innocent and they may even have their details and picture kept on record despite having committed no crime. Eric thinks the government should implement a long pause on the roll out of this technology while all these issues are resolved. I think theres a much deeper issue, which is the issue of the face veil. I think if facial Recognition Technology is rolled out by the police in the uk, it will lead to an effective ban on face veils. The kings cross estate, the private area of land containing the station and a load of shops and offices has also been at the centre of facial recognition controversy. It was recently revealed the owners of the estate had been using it on the public here without their knowledge. And then to make matters worse, it came to light that the met police and British Transport Police had supplied the company with images for their database. Both Police Forces had initially denied any involvement. So everything about this is happening in a vacuum of regulation and oversight and clearly public knowledge. And when you speak to people. I mean, theres thousands of people Walking Around here right now. When you speak to people, how much do they know about this . Nothing. People know nothing about it. And ive looked around the whole area, looking for signs, any kind of information about whats been going on, and theres been absolutely nothing. At digital barriers, zak doffman wouldnt reveal to us exactly who he sold this technology to. For some people, that is the most important piece of information. Who is it that. . Youve demonstrated the technology to me. But who is it thats using it . Thats what they want to know. Why wont you tell us that . Lets be very clear. I agree with you, i think that the use cases of the technology should be transparent. Weve said that very publicly. But my point is its not for me to Start Talking about organisations that use our technology or technology from others. It is for regulation and those organisations themselves to make it known. The other police force thats been trialling this technology is South Wales Police. As a result, they were taken to the high court over it by a man who was caught on their cameras. Butjust this month, the court found their use of facial recognition was lawful. That decision is now being appealed. Tony porter is the uks surveillance commissioner. He thinks there must be a set of strict standards in place governing how this technology is used before its uptake spreads and theres any formal adoption by Police Forces. I think there should be a single standard that incorporates the type of equipment, so tight approval, there should be a standard around its siting, there should be standards around its efficiency and effectiveness. So i suppose you might say, what is an appropriate false hit rate that is tolerable . If we were to live in a police state, then we would be able to do lots of things. If we put cameras in peoples bedrooms, we would be able to stop Domestic Abuse, for example. If we microchipped people, we would know where everyone is all the time, wed be able to catch bad people. Just last week, a group of musicians added their voices to calls for restrictions on facial recognition in this case, at gigs. This is a debate thats only getting louder. A statement from the home office. We support the use of this technology to apprehend criminals. There is a sufficient Legal Framework for the use of live facial techin framework for the use of live facial tech in the uk but we continue to work with the police and others to make sure that we maintain the trust of the public and confidence in Law Enforcement. Lets talk now to liberal democrat mp Christine Jardine shes the shadow home secretary for the party and to reema patel from the Ada Lovelace Institute they do research into technology and society. Shes also a labour councillor in north london. Lee dodderidge was a former security adviser at the national Counter Terrorism Security Office a division of the police force and peter bleksley, a former Scotland Yard detective and star of channel 4s hunted. And if you havent seen that programme, it replicates cctv and powers of the state to track people who go on the run. Christine jardine, the high court has decided that South Wales Police was make use of this technology was lawful, have you not already lost this battle . We are atan you not already lost this battle . We are at an early stage in the development of Artificial Intelligence for various different juices in society. Before we allow the widespread use of any form of surveillance, it must be regulated. We have to know that it is being used to a certain standard and that we ove rco m e used to a certain standard and that we overcome all of the in built bias is that we have heard on the film, you know, that certain ethnic minorities, women, it doesnt necessarily get it right. So these are things that we must take into account and we have to look at that and find a way if we are going to use Artificial Intelligence like this that we are in control of it and it does not run away ahead of our ability to regulate it, which is where we are at the moment and that isa where we are at the moment and that is a real danger. Do you agree, peter . It is a bit rich coming from a politician that we need some form of regulatory framework. Because politicians and the home office have neglected their responsibility to discuss this, to get ahead of the curve, to subject it to the necessary scrutiny and consequently we are where we are at. If the home office are doing that, you are correct, but i do think that we have got to the stage where we just cant say, well, the home office havent done it properly, therefore we let it happen. We cant further neglect responsibility, we have to stop and look at it and we cannot have a system. We are already one of the most surveyed and watch countries in the world and it is an invasion of peoples privacy without justification. I have no problem with, you know, ways of identifying Counter Terrorism etc and developing that, thats great, but i could be walking down the street talking to a friend and could be a camera checking out what i am doing. Friend and could be a camera checking out what i am doingm friend and could be a camera checking out what i am doing. It is checking out what i am doing. It is checking to see if you are only wanted list, that is what the technology is set up for and that surely that has to be a good thing. Look at our society at the moment, soaring crime where it soaring crime rates, vastly diminished police numbers. Anything that keeps a safer must be good. If you weeks ago we published our First Ever National survey into the use of facial Recognition Technology. Live facial Recognition Technology. Live facial Recognition Technology. Live facial Recognition Technology . Yes, and it is clear that the British Public back restrictions on its use and application. The South Wales Police example is a good one of an application of law in one instance but there is obviously a different range of instances. The primary concerns range of instances. The primary concerns we re range of instances. The primary concerns we re around range of instances. The primary concerns were around the normalisation of surveillance and the infringement on privacy and the lack of ability to opt out of its use in terms of facial Recognition Technology. What also really interesting is that the survey illustrated that the majority of the public supported a voluntary mother told him within the industry. So the letters calling for some kind of pause which is signed by various Political Parties and politicians, including yourself, and organisations like the Footballers Association football supporters association. Lee dodderidge, can you give an example of a case where you worked on something we are live facial recognition would have helped bbcnewsline yes, there was one large investigation trying to pursue two suspects. I can remember spending one and a half days in a city centre and a council cctv room trying to identify the two individuals. If we had had the facial Recognition Technology in place, whether live or pre recorded, what you would do is use of technology to run through that footage, not using the person, let the technology do it and playing it back at six up to eight times the speed. So rather than Police Officers being tied up doing that, it isa officers being tied up doing that, it is a perfect fit for the investigation. For most people here and you describe it like that, it makes perfect sense this technology, but the issue is the lack of accountability and regulation. |j totally accountability and regulation. totally agree, it must be around proportionality. I was speaking to tony porter if you months ago. They have been reviewing cctv systems which ironically people walk past every day and nobody minds that, yet their images are stored for 31 days. If you come here to the bbc studios, you have a sign suggesting that your photo will be held for one year. dont actually agree that people dont actually agree that people dont mind walking past cctv cameras. I actually dont agree with that. I think people generally there are times when you are in the pub and you come out and you are talking to someone and you are having a private conversation. Why should that be on cctv . You would want that cctv ca m era that be on cctv . You would want that cctv camera if someone runs up and attach it from behind. You would say, where is the cctv to capture the offender . I agree but we have regulated cctv and there are times when people still object to having them. I will come back to you, reema. You have said there is a sign saying there is an image telling you that your image will be held for one year. None of us knows when we are being live facially matched. Yes, one aspect is the gathering and collection of biometric data about the face. This technology is literally in your face in the way that cctv is not. There are other aspects around the sharing of that. The metropolitan police have been widely criticised for sharing that data with commercial organisations with data with commercial organisations with without data with commercial organisations with without giving a clear articulation as to how and why. That image belongs to the individual. What would the reason be for the met police and the British Transport Police handing over those images to a private tech company . The aim is to try to catch fugitives. Yesterday morning i was watching bbc plasma crimewatch where they are illustrating fugitives wanted for murderand illustrating fugitives wanted for murder and crimes. This is the main point and thrust of this technology and the genie is well and truly out of the lamp. I pray South Wales Police and the met for filing it in the absence of any framework. So well done to them. I hope they will continue to drive it forward. Because i want every kind of technology to keep me and my loved one say. Private companies are not tracking down fugitives. But the are protecting what tracking down fugitives. But the are protecting what but they are do is protecting what but they are do is but they are using that technology to protect their staff and their buildings, they should be encouraged to do that. There has been so little public conversation and debate about this in parliament and debate about this in parliament and therefore there are no regulations about how this is being used. I agree. I hate regulations about how this is being used. Iagree. I hate to regulations about how this is being used. I agree. I hate to say it but so much of the past three years especially has been sucked into talking about brexit when we should have been dealing with issues like this. The point that reema made was really important. We have been talking a lot about protecting our data when we say no to things on the internet and we are worried about that. Then you magnified at 1000 times or more when you are actually talking about your face. And the invasion of privacy and a consent that you need. The biggest danger of all is that we are allowing Artificial Intelligence to do this. Eventually it is a good idea to have Artificial Intelligence helping the police and ensuring that Counter Terrorism does its job. Police and ensuring that Counter Terrorism does itsjob. But we must make sure that we get it right. Let me ask lee this. How worried argue that innocent people with darker skin are potentially being questioned because the technology is not as effective on someone technology is not as effective on someone with darker skin . technology is not as effective on someone with darker skin . I can understand there being concerns about that. Are you worried about it . Yes. I think one of the things that we need to better understand are the areas where this technology will be used and the purposes for it so that people can better understand. There is no difference really looking at facial recognition as the Artificial Intelligence. Well, look how many of us are using social media and you can walk into a shop and it pains you and let you know the offers. That is Artificial Intelligence working in that environment, there is no difference. Lam highly environment, there is no difference. I am highly concerned about it as an individual may be directly affected. Our survey illustrated that there is a big difference and a 10 difference in the likeliness of you wanting to opt out of these technologies if you are from an ethnic minority background. So, that illustrates the scale of concern that people add minority groups have about it. Thank you all very much. Thank you for coming on the programme. Thank you. Still to come on the programme. We will be live at the Supreme Court inafew we will be live at the Supreme Court in a few minutes. The paedophile nursery nurse Vanessa George has been released from jail today after serving ten years. Last month we spoke to one father who had a child at the nursery. He believes his child was sexually assaulted by va nessa child was sexually assaulted by Vanessa George. He told us that he does not believe that she is no longer a danger to the public. The only time she showed remorse was in that first interview. You are being very brave this evening. that first interview. You are being very brave this evening. I wasnt doing it for enjoyment or anything like that. I believe that women are still a danger to children, she had had those arches before and i do not think they will go away. I think there is a very strong possibility that she could to do it again. This is simons reaction to the news this morning. Disgusted. I knew this was coming. But to find out on the day its already happened has made it worse. Again there is no consideration for the victims. The families have said they have been tormented by Vanessa Georges unwillingness to admit which infants she abused. This was her speaking during Police Interviews after her arrest. Child Protection Officers have visited 180 children thought to have had contact with george. The Probation Service has said 21 families have taken up an offer of support. Vanessa george has been banned from entering both devon and cornwall upon her release. Last month we spoke to a former worker at little teds nursery. They felt there would have been repercussions if she were to return to the area. Some would say it is better she does come out and come back here. Why . She would be dealt with. Would that be the correct thing . she would be dealt with. Would that be the correct thing . I would not care. Someone will bump into her and recognise her. It will happen to a heart eventually and someone will get a longer sentence than she did. Ifi get a longer sentence than she did. If i was to bump into her i would kill her. Luke pollard is the local mp in plymouth. Good morning, mr pollard. Your reaction to the fact that Vanessa George has been released after serving ten years for her crimes . M is sickening, to be honest. She still refuses to name the babies and toddlers she abused, the sheer level of anger and disgust that families here in plymouth feel about this cannot be underestimated. It really is wrong that she is being released, especially when she still keeps refusing to name those kids. Should that have been a condition of her release, then . I think it should be. I dont think you can show genuine remorse for a crime like this when you are refusing to name the children that she abused. I think the whole system around parole here is not valuing victims well enough. We have heard from one of the pa rents of we have heard from one of the parents of the kids that she potentially abused. They have got a life sentence ahead of them of not knowing whether it was their child that Vanessa George abused or not. She is out on the streets. I havent had official confirmation of that, andi had official confirmation of that, and i think the way that the authorities have treated the victims of va nessa authorities have treated the victims of Vanessa George, having them find out about it in the media rather than direct from the authorities, shows that this system isnt working properly. It needs to change. But va nessa properly. It needs to change. But Vanessa George will be out on the streets. Im worried about. Im glad shes not coming to devon, and again, because she is not welcome here. She should not be near any children again in my mind, but she will be settled somewhere in britain, so that is a Different Community that wont be familiar with her crime where she will be living amongst, and she shouldnt be in that community, she should be behind bars. Thank you, look pollard, labour behind bars. Thank you, look polla rd, labour mp behind bars. Thank you, look pollard, labour mp for the area. Judges at the most senior court in the uk the Supreme Court are continuing to hear evidence over whether the Prime Minister acted lawfully in suspending parliament this month. Arguments from the governments representatives against one of the two appeals, the one brought by gina millers team, lets listening to what is happening right now. Subject only, however, to those legislative provisions, the prerogative power is not subject to legislative control. The start of the first session, the termination of the current and the start of the new one, how sessions are to be divided in the period between them, including when they should sit, are concluded by the government. That is the scene is set. The case law, if i can turn briefly to that, as we respectfully submit, three key features. The first is that the fact alone that this is a prerogative power, in other words, the source of the power, does not of course make challenge to this exercise cook, but the converse, we submit is likewise not the case, in other words just because a prerogative power is being exercised, judicial review applies in all its forms. The question is whether the issue or the subject matter is just to justicial, see you again and you examine the nature of the power. That is the test that is examined in relation to prerogative powers, in other words, the nature and subject matter, dont assume that because it is a prerogative power it is susceptible tojr. In a long line of case law, which i can take i hope in relevant part, andi which i can take i hope in relevant part, and i hope you know have a cross refe re nce part, and i hope you know have a cross reference case, cross referenced cross reference case, cross referenced into the scottish bundles, but at least you have got cross refe re nce bundles, but at least you have got cross reference it to something, so our case for the purpose of this appeal if you would, and i will take the quotation from there if that would be convenient, i can give you. You wont be surprised, sir james, to him and asked, has it come electronically . The cross reference . I sincerely hope. No. Not the cross refe re nce. I sincerely hope. No. Not the cross reference. You can have it electronically, certainly. Are you going to make me read a hard copy . The scottish references are a great deal easier to cope with english ones because they are all in one document, whereas the english ones are in myriad documents, which are very difficult to navigate. That is why im taking it to the quotations in the written case, to save you having that burden. But if you have the case, if you would. It was on the case, if you would. It was on the test being whether or not the issueis the test being whether or not the issue is justicial, the test being whether or not the issue isjusticial, rather the test being whether or not the issue is justicial, rather than just saying it is a prerogative power, so jr must apply, and the prerogatives for that art the gchq authority, which you have at paragraph a9, the quote for lord scarman. That was then applied by lord Justice Taylor as it was in the everett case, if you go forward in the case to paragraph 52. You see the first sentence of the quote in paragraph 52, and it was confirmed by the Supreme Court recently in the use of case, paragraph 2a, i think the quotation you have is from paragraph 26, but it is paragraph 2a which is in the third bundle, tab 3a, and it is to the same effect. I dont think that formulation has ever been challenged, as far as im aware. It has been before this court on more than one occasion. Both before and after it appears to have been based on gchq. The second proposition is that the subject matter will not be justiciable in the exercise of prerogative powers if the item is political or involves high policy, and that is the same in public law orany and that is the same in public law or any other types of case. Can i just ask you. Dissolving parliament has always been accepted as one of the non justiciable. Has always been accepted as one of the non justiciable. Is has always been accepted as one of the non justiciable. Is there any material difference between the role of the court in setting parliament and proroguing parliament . None at all, and i will come to that. You will recall that in part my noble friend said that you now have a fixed term parliaments act, to which we say, so what . What we are comparing is prerogative, but i will come to that as a discrete topic, if i may. So the topic of subjects being not justiciable if i may. So the topic of subjects being notjusticiable if they are a matter of high policy, you have the establishment here of that proposition in our case, paragraph 50 eight, 59 and 60. And i shall sit immediately in relation to paragraph 59, the quote from lord bingham, that of course the position there and may be other members of the court will recall, that was a human rights act challenge, so that court had to determine the issue of public emergency threatening the life of the nation, because that was part of the nation, because that was part of the statutory test the court had to consider and apply. And it was of course in that context, iea justiciable context by definition, because the issue was whether or not there was such a public emergency under the human rights act, talking about the suspension of one of the articles of the suspension, but the position, as you will appreciate is that something being non justiciable asa that something being non justiciable as a principle is at the extreme end of those considerations with which the court will be intimately familiarfrom inter alia the court will be intimately familiar from inter alia all the human rights cases about proportionality, where the factor that determines the breadth of the margin, orthe that determines the breadth of the margin, or the fact ofs that determine it, are essentially based on the institutional competence. How confident is the court rather than another pillar of the state to decide this issue . And propriety. Is it right that the court should make this decision rather than a political wing of the legislature . And those features sit on what could properly be described as a spectrum, but non justiciability sits at the end of that. And even though the state m e nts end of that. And even though the statements by lord bingham sits at the end of that, in that the issues we re the end of that, in that the issues were plainly at justiciable the end of that, in that the issues were plainly atjusticiable in the releva nce were plainly atjusticiable in the relevance of determining the nature of the matters which the court will consider in the context of non justiciability. You will also note if you would of the reference and the quotation from wheeler in paragraph a8. 61 . That is a false reference. Im so sorry. 61. It is in bundle four, fourth tab. And in particular reference that matters depending on a political rather than legal judgment is the way they put it. It is about six lines up from the bottom. Just before the exceptions of mr sumptions submissions in that case. And we also note a case which was inter alia about impropriety of purpose, and whether or not the confidence has by agreement affected or could be challenged under the bribery act, the decision of the lord in the quotation set out at 63 and 6a. In particular we place reliance upon that third sentence in a quotation in our paragraph 63, and then this political context, there is no releva nt political context, there is no relevant party, and then it goes on. And finally on this aspect we invite you to note the principled distinction to be rules of a legislative kind on the one hand and matters left to politicaljudgment on the other, a distinction drawn by lord bingham in the robinson case and we have given you the quotation, the relevant part of the quotation, in paragraph 66 of the case, if i could invite you just to remind yourselves of that. It might be thought as a particularly pertinent passage in the context of our case, it refers to dissolution as you see and draws a clear distinction based on our constitution between effectively legislative controls which he described as being subject to the predetermination of mechanistic rules, and matters of political judgment. While we have this passage in front of us, it does make the point that in relation to dissolution, the crown exercises a genuine function of judgment. Dissolution, the crown exercises a genuine function ofjudgment. My lord, yes, and i will come back to that as well, because that is another basis on which my honourable friend seeks to distinguish the dissolution cases. Not to put it too far down the line, the answer is going to be that there is some question as to precisely how far and what type of powers may be reserved to the sovereign in particular contexts, but there is academic difference on that issue. In both contexts, the sovereign will act inevitably on the advice of ministers and in particular the Prime Minister, and so those differences may for present purposes be more ephemeral than real, that is going to be the answer to that particular question. You are coming back to that . I am coming back to it. I will summarise all of it when we come back to dissolution. I am particularly interested in the briefing paper we have in prorogation. And so we respectfully submit, if you keep our case to hand, if you would, and have thejudgment you keep our case to hand, if you would, and have the judgment of the Divisional Court below, which you probably have in hard copy in the bundles. We respectfully submit that their conclusion at paragraph a2. Was correct. As is their analysis in paragraphs a3 a6, setting out effectively the quotes i have taken to in our case are supporting that proposition. So that is the second proposition. So that is the second proposition. The third proposition is that the rationale for non justiciability of that type of decision, in other words of political or high policy decisions, is twofold. First, there are no judicial or manageable standards to ta ke judicial or manageable standards to take that phraseology from. I think it was originally from butes, but that was taken from the us Supreme Courtjudgments. There are no manageable or judicial standards against which to test the lawfulness of decisions engaging political or high policy considerations. Sun i think it was taken from a rather different principle, which was the political question option. I think you are right, and going back on all the history of that was subject to some analysis, and i know that you are very familiar with the Supreme Court cosmic position from the iraqi case. Could youjust court cosmic position from the iraqi case. Could you just give me the reference. You will appreciate, sir james, that my computer isnt working, so if and when you refer me to any of the documents, im going to any of the documents, im going to be in trouble. But never mind, maybe we will get it working before you do that. I have got the hard copies of everything you refer to so far, but could just remind me of the paragraph number in the Divisional Courtsjudgment paragraph number in the Divisional Courts judgment which you were commending before i got into trouble with my computer . I think it was 42 with my computer . I think it was 42 with the analysis that follows of the case law in a3 a6. But those quotations are the ones that i have already taken you to in our case, so. And fun no manageable or justiciable manageable standards, the passage in the courtsjudging i was recommending was a7, particularly the second sentence. That is the first of the rationale for the non justiciability of political decision making. The second is the one i mentioned in the context of the discussion on proportionality, which is that it would not be constitutionally appropriate for the courts to seek to do so. That is because the exercise of the particular power is appropriate for political, not judicial resolution and control, and thatis judicial resolution and control, and that is fine fundamentally based on the separation of powers, which isa on the separation of powers, which is a fundamental part of the constitution, as you are aware. And wiest respectfully submit that both of those rationale, the twin rationale, were pulled together in the showgirl case the shergill case, and if you go back to paragraph 51, you will see. M case, and if you go back to paragraph 51, you will see. It is fairto paragraph 51, you will see. It is fair to say, is it not, that the essay onjusticiability fair to say, is it not, that the essay on justiciability is not really the ratio in that case. That is not only a fair comment but an entirely accurate one. I suspect it may be an example of a temptation being utterly irresistible. You will have to bear that in mind, said james, will be not . You do. There was a smidgen of a hook for non justiciability analysis, but but that breadth of intellectual force may be a different question. My lady, i rely on it even if strictly on the basis as lord bingham once said, there is obita and there is obita, and this is a passage which we respectfully submit does properly represent those rationales, and is a crisp summary, and what the courts are saying is that it is judicial because it was nonpolitical. The lack ofjudicial and because it was nonpolitical. The lack of judicial and manageable standards was the other reason why it was political to get both strands in the single helpful quotation. So those are the three Core Principles of propositions we take from that case. We do accept that it is for the court to decide on the limits of the court to decide on the limits of the extent of the prerogative power. I do. And do you further accept that the prerogative powers are constrained by overarching fundamental rights . My lord, in some circumstances, they are. Established principles. So there are constraints to the power, and it is the purpose and role of the court to consider what those constraints are and whether they have been exceeded. What those constraints are and whether they have been exceededm is. I dont seek to deny that. I think my learned friend sought to rely below not so much here but on the rule of law in supporting his case, and we respectfully submit precisely for the reasons my lot has just given, the rule of law does not advance his case at all, because we have always accepted that it is for the court to decide all sorts of issues relating to the prerogative, including whether it continues to exist in the face of legislative indication, and what the limits of the non justiciability should be. Would you agree that the limits of parliament has the potential to undermine parliaments ability to carry out its constitutional function of holding the executive to account . My lord, by definition, which i will accept it in exactly those terms, or i will be accused of accepting a contentious proposition, but prorogation has the effect that it has, so the bills that were previously before parliament, they can be reintroduced, so that parliamentary questions cannot be asked, so that parliamentary committees do not sit. So of course to that effect it has the effect that it has. My submission will be that it has. My submission will be that despite those features, this is a well established constitutional function, exerciseable and to be exercised by the executive, and the question remains whether there are, to go back to the rational identified in shergill, whether there are standards that are woven into decisions to prorogue eight, also whether it is as a matter of constitutional propriety, appropriate for those controls to be exercised by the court as opposed ultimately to the body to which the executive is ultimately accountable, namely parliament. I take it then that you wouldnt accept the solution in the latest a response, i dont know whether you have read it, paragraph eight, that the exercise of the power with the aim or effect of the power with the aim or effect of frustrating a discharge of the sovereign rule of parliament is out with the scope of the power. M sovereign rule of parliament is out with the scope of the power. It begs the question, that is the issue. With the scope of the power. It begs the question, that is the issuem it is, if it has that effect, and has that purpose, is it outwith . It is, if it has that effect, and has that purpose, is it out with . My submission is that these are politicaljudgments, but submission is that these are political judgments, but im submission is that these are politicaljudgments, but im going to develop those submissions, and thatis to develop those submissions, and that is essentially the argument that is essentially the argument thatis that is essentially the argument that is going to be developed. That proposition is right or wrong. We will look forward to that we have started at least. My ladies, my lords, those are the three propositions we take from the case law. Lord panic submits if i have understood it correctly that prerogative powers are justiciable because they involve the exercise of executive power, but my submission in answer to that if that is the case that is made, certainly it was the case that was made overtly although it appears to underline many of the submissions here, if thatis many of the submissions here, if that is a submission that is made, the principle we submit is not that all exercises of power or all exercises are prerogative power are justiciable by definition, in effect because they are exercises of power. The principle is thatjusticiability depends on subject matter. For all the reasons that i have taken you through and supported by all the case law, including the judgment of lord farnworth, and the case between 2a and 26. Analysed by the Divisional Court, and their judgment of 3738, Divisional Court, and their judgment of 37 38, if your computer is back up of 37 38, if your computer is back up and running. My noble friend lord panics submission would also be too broad. It denies the possibility that some subject matters would indeed be unsuitable forjudicial intervention, eitherfor indeed be unsuitable forjudicial intervention, either for the indeed be unsuitable forjudicial intervention, eitherfor the reasons that were identified before, and directly contrary to longer and higher authority, and it is to be noted throughout the submissions that my loaded friend lord panics case focusing as it did on the propriety of purpose, does not seek to nor could it, cut down the bases ofjudicial review. He says that this prerogative power is subject to judicial review on all of the traditional bases. Rationality, releva nce traditional bases. Rationality, relevance and irrelevant consideration, improper purpose, all of those controls, he says, can be exercised over decisions by the executive to Prorogue Parliament, andi executive to Prorogue Parliament, and i will come to the question as to whether that can possibly be right. And we submit that the three propositions that i identified, with the possibility even in public law and with relation to prerogative power of some non justiciability cutout is positively consistent with the rule of law, not really for the reason that i gave in discussion a moment to go with nordkurve accepting that it was for the court to set the boundaries of non justiciability, but also for the separate reason that i touched on earlier, which is that the separation of powers is at the heart of the rule of law, and is respected by the courts, and underpins the second of the rationales for non justiciability, namely constitutional propriety. You should make the decision under our constitutional arrangements . My learned friend lord panic also suggested that the list, that famous list from gchq onwards of those exa m ples of list from gchq onwards of those examples of powers that work non justiciability, including dissolution and also Foreign Policy and so on, that the world and the case law has moved on since that list was first set out, and that is true. It has indeed moved on, but none of that moving on has created the principled approach for which he contends. None of that case law has come close to establishing that proposition, indeed that proposition asi proposition, indeed that proposition as i have indicated is positively inconsistent, not merely with the old authorities but with the newer ones, including use yusuf paragraphs 2a26, ones, including use yusuf paragraphs 2a 26, and the abbas case in which some control was exercised but the court was concerned to make absolutely clear that there were still what the court described as forbidden territory, there was still forbidden territory, there was still forbidden territory, there was still forbidden territory even in the Foreign Relations sphere. Was this related to the particular rights of an individual . That was the other point i was going to come do. Those developments, which lord coe was putting lord kerr was putting to me, where those subject matter is abutted on individual rights. There was no suggestion that we are in that territory here. Many of you will remember in the argument of the allusion to the bullet being fired from the gun and inevitably hitting the right target, as it were, but thatis the right target, as it were, but that is not this case. I dont think lord khan worth thought that was a compelling analogy. As i recall, he was ina compelling analogy. As i recall, he was in a minority. I thinki compelling analogy. As i recall, he was in a minority. I think i was right in being rather doubtful in thinking that article 50 could be withdrawn, which we now know to be wrong. We are all operating on certain assumptions, in that case, as we recall as well. The more serious point is that that case law, where those areas have been eaten into, Foreign Policy and matters of that kind, where that listed gchq has been impinged upon, the impinging is almost invariably because there is a direct effect on individual rights, which we are not dealing with here. So that is the basic position in principle, we respectfully submit, and our submission, by submission, to the court is that decisions are squarely and parratto magically within that political and within the key rationale or of non disability. And i start with the four points, and then i am going to test it, if i may, against the present circumstances that we have here, and the first of those four general points is that as a species of decision, decisions are inherently and fundamentally political in nature. They will involve considerations about how most efficiently to manage the conduct of the governments business, including specifically its legislative agenda in parliament. And those sorts of considerations are shot through with assessments of a political kind including how most effectively