As well as recording today’s speeches, I also spoke to some of the people who came on today’s “Grayling Day” demonstration in London against legal aid cuts.

Subashini Nathan volunteers for Bail for Immigration Detainees and the Joint Council for the Welfare of Immigrants.

It’s been quite a journey, working with voluntary organisations and charities

she said, and told me about he experience of seeing

those that are in dire poverty … not being able to put forward a defence.

She says it’s

despicable

that the government won’t fund for others the sort of legal support it pays for for itself.

The best speeches at today’s “Grayling Day” demonstration against legal aid cuts weren’t by lawyers or politicians, but by those who’v been at the sharp end of the justice system. And Francis Nettles’s speech was perhaps the most impressive of the day.

He explained with clarity and straightforwardness how, having been confronted by a boy who he’d asked to be quiet outside his home, he’d had to take hold of the boy to make him leave the front of his house – and was later accused of common assault. “Cases like mine” he said “are why access to justice is important for us all”. He felt he’d acted completely reasonably, but without the help of lawyers funded by legal aid he felt he would have been unable to prove his innocence and avoid irreparable damage to his life.

Nettles felt that the failings of the police and CPS were at least partly responsible for what happened to him. He said he understands those failings may, themselves, be due to budget cuts. But, he said, in a passage that made the case for legal aid as well as any I’ve heard,

this makes it all the more important that the defence is properly funded to make up for the deficiencies in the prosecution, and to ensure that justice can be done.

If any story is capable of breaking through the cynical perception that the legal aid debate is just about lawyers’ incomes and criminals’ rights, this is it.

Shami Chakrabarti told the crowd gathered at Old Palace Yard this morning, opposite the Houses of Parliament, that naming March 7 2014 “Grayling Day” was no honour for the Lord Chancellor: on the contrary, this was, she said, his “day of shame”.

Liberty’s director didn’t spare MPs and peers either, who she said “care not for the children of the poor”. She said they seek legal advice if their own interests are at stake and that they’re “not just illiterates and hypocrites” but “vandals”.

You have been too quiet, my learned friends, for too long

she concluded, suggesting a similar day of action would be needed before long.

Here are David Miranda’s grounds in support of his application to the Court of Appeal, for permission to appeal against the Administrative Court’s dismissal of his judicial review. They were drafted by Matthew Ryder QC, Edward Craven and Raj Desai, all of Matrix Chambers. Miranda continues to challenge his questioning and detention last year under Schedule 7 of the Terrorism Act 2000.

The grounds essentially restate in a slightly different form the same six legal points that were made in his failed application for permission from the Administrative Court immediately after the judicial review.

First, Miranda’s lawyers argue that Lord Justice Laws erred, and failed to reflect the principle laid down in O’Hara v RUC, when he ruled that the knowledge and purposes of senior officers – not just of the constables who carried out the stop – are relevant to whether the purpose of detention was lawful.

Second, they raise detailed points about what was in the Detective Superintendent’s mind, and whether he misunderstood the law or reasoned speculatively in such a way as to taint the lawfulness of the stop. They’ve now also added the argument that his reliance on the reasoning and aims of the Security Service took him outside the proper Schedule 7 purpose.

Third, they pick up on Laws LJ’s doubts about Lord Sumption’s “fourth” requirement of proportionality (in Bank Mellat v HM Treasury, para. 20), that

(iv) … a fair balance has been struck between the rights of the individual and the interests of the community.

They go on to argue that Laws LJ gave too much weight, when assessing the proportionality of the stop, to government and police claims about national security – and not enough weight to the evidence before him, including evidence about responsible journalism.

Fourthly, they say Laws LJ was wrong in his approach to Schedule 5 of the 2000 Act and its potential application to this case. As part of that ground they in effect restate, fifthly, their argument based on Sanoma Uitgevers, Telegraaf Media and Nagla v Latvia that the use Schedule 7 must be authorised by a judge, in order to be human rights-compatible.

Finally, David Miranda’s lawyers again argue that Schedule 7 is incompatible with human rights, relying on the fact that the Supreme Court will already hear this argument (in the Beghal case) in relation to the right to respect for private life and the right of personal liberty – as well as on freedom of expression.

As I’ve said before, I don’t think all these grounds are very strong. I think it’s unlikely that the Court of Appeal will actually reverse Laws LJ’s judgment. But I’d be surprised if the O’Hara point – has Laws LJ wrongly included the knowledge of too many officers in working out the actual purpose of the stop? – and the point about the need for authorisation by a judge aren’t enough to get permission.

Here’s David Miranda’s application to the Court of Appeal* – drafted by Matthew Ryder QC and Edward Craven of Matrix Chambers – for permission to appeal against today’s Administrative Court judgment. The court today dismissed his judicial review challenge to his questioning and detention last August under Schedule 7 of the Terrorism Act 2000.

The application relies on six legal points raised by the judgment, which David Miranda’s lawyers say should be considered on appeal.

First, it picks up on Lord Justice Laws’s conclusion that the knowledge and purposes of senior officers – not just of the two constables who carried out the stop – are relevant when considering whether the purpose of detention was lawful. Miranda’s lawyers say Laws LJ’s approach does not reflect the principle laid down in O’Hara v RUC, that what matters (in that case, in relation to an arrest) is (in Lord Hope’s words)

what is in the mind of the arresting officer when the power is exercised. … the application of the objective test does not require the court to look beyond what was in the mind of the arresting officer. It is the grounds which were in his mind at the time which must be found to be reasonable grounds for the suspicion which he has formed. All that the objective test requires is that these grounds be examined objectively and that they be judged at the time when the power was exercised.

Second, it raises detailed questions about what was in the Detective Superintendent’s mind, and whether he misunderstood the law or reasoned speculatively in such a way as to taint the lawfulness of the stop.

Thirdly, David Miranda’s lawyers argue that questions of the human rights compatibility of Schedule 7 are of such importance that they either will already be heard by the Supreme Court (in the Beghal case) or raise separate issues – specifically journalists’ freedom of expression – that ought similarly to be heard by an appeal court.

Fourthly, they say Laws LJ’s approach to Schedule 5 of the 2000 Act and its application to what he called “stolen” raw material raises novel and far-reaching issues.

They return to their argument based on Sanoma Uitgevers, Telegraaf Media and Nagla v Latvia that the use Schedule 7 must be authorised by a judge, in order to be human rights-compatible – an argument I said earlier Laws LJ rejected in perhaps the most weakly-reasoned passage in his judgment.

And finally, they pick up on Laws LJ’s doubts about Lord Sumption’s “fourth” requirement of proportionality (in Bank Mellat v HM Treasury, para. 20), that

(iv) … a fair balance has been struck between the rights of the individual and the interests of the community.

They stress of course the public interest in the case, and the interest of MPs and the independent reviewer of terrorism legislation, David Anderson QC.

I don’t think all these arguments hold a lot of weight: the points on what was in the Detective Superintendent’s mind and on Schedule 5 seem to me unlikely to take the legal arguments much further, and the proportionality issue, fascinating as it is for public law nerds, is unlikely to be decisive. But the O’Hara point – has Laws LJ wrongly considered the purposes of all the officers involved? – seems more substantial, as does the point about authorisation by a judge, which I’m not sure Laws LJ’s judgment dealt with really convincingly.

I’ll be surprised if permission’s refused by the Court of Appeal*.

*I initially thought this document (which I found here) was the application to the Court of Appeal. But as @SillySodz said on Twitter, it must in fact be the application to the Administrative Court (which has already been refused). Both the heading of the document and its date support that. In the heat of yesterday I didn’t scrutinise it as closely as I should, and I made a silly mistake. Sorry. I decided to edit the post slightly (as you can see) to remove the mistake, which has now been confirmed by Bindmans. I think my discussion of the grounds (which may be largely repeated to the Court of Appeal) is worth keeping up.

Today the Administrative Court dismissed David Miranda’s judicial review challenge to his detention and questioning at Heathrow airport last August under Schedule 7 of the Terrorism Act 2000. The government is bound to welcome this legal victory; unsurprisingly Theresa May says the judgment

overwhelmingly supports the wholly proportionate action taken by the police in this case to protect national security.

David Miranda for his part says

I will appeal this ruling, and keep appealing until the end, not because I care about what the British government calls me, but because the values of press freedom that are at stake are too important

David Miranda’s lawyers essentially made three arguments. First, 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. Second, 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 it requires no prior authorisation by a judge. And third, that even if Schedule 7 can be read as compatible with free speech, its use in his case was disproportionate. The court has rejected all three of those grounds of challenge.

Lord Justice Laws (with whom Mr Justice Ouseley and Mr Justice Openshaw agreed) says that it was not only the purpose of the two constables who actually made the “stop” which mattered (paragraph 19 of the judgment). Interestingly, this is a rejection of a submission made by Steven Kovats QC at the hearing. But taking account of what senior officers knew and intended, too, Laws LJ finds (para. 27) that

The purpose of the stop … may be simply expressed. It was to ascertain the nature of the material which the claimant was carrying and if on examination it proved to be as was feared, to neutralise the effects of its release (or further release) or dissemination.

Laws LJ holds that this purpose fell properly within Schedule 7 (para. 36). He emphasises the width of Schedule 7 (para. 28) and rejects the argument that it can only be used to stop someone who intentionally or recklessly endangers life or creates a risk (para. 29).  The definition of terrorism in section 1 of the Act, he says,

does not create a criminal offence. … That being so, we should not assume that foundational concepts of the criminal law, such as intention and recklessness, are to be read into provisions such as s.1(2)(c) (“endangers a person’s life”) or 1(2)(d) (“creates a serious risk to the health or safety of the public”). S.1(2) is concerned only to define the categories of “action” whose use or threat may constitute terrorism: not to impose any accompanying mental element.

The only real limits Laws LJ saw to the use of Schedule 7 are that (para. 31)

the general law of course requires that the power be exercised upon some reasoned basis, proportionately … and in good faith. Secondly, there is a limitation upon the meaning of terrorism given by reference to the mental or purposive elements prescribed by s.1(1)(b) (“designed to influence… or to intimidate…”) and 1(1)(c) (“for the purpose of advancing a political, religious, racial or ideological cause”).

Putting all those features together, he says (para. 32)

it appears to me that the Schedule 7 power is given in order to provide a reasonable but limited opportunity for the ascertainment of a possibility: the possibility that a traveller at a port may be involved (“concerned” – s.40(1)(b)), directly or indirectly, in any of a range of activities enumerated in s.1(2).

Laws LJ rejects the idea that interpreting Schedule 7 in this way amounts to equating journalism with terrorism (para. 35):

There is no suggestion that media reporting on terrorism ought per se to be considered equivalent to assisting terrorists. The construction advanced allows as I have said for the ascertainment of the possibility that a traveller at a port may be involved, directly or indirectly, in any of a range of activities enumerated in s.1(2) of the Act. Not least given the requirement that the power must be exercised upon some reasoned basis, proportionately and in good faith, I cannot conclude that any of the international materials relied on points towards a different construction.

Laws LJ casts doubt, interestingly from a technical legal point of view, on Lord Sumption’s view (in Bank Mellat v HM Treasury, para. 20), that action interfering with human rights is only proportionate where

(iv) … a fair balance has been struck between the rights of the individual and the interests of the community.

This, says Laws LJ (para. 40)

appears to require the court … to decide whether the measure, though it has a justified purpose and is no more intrusive than necessary, is nevertheless offensive because it fails to strike the right balance between private right and public interest; and the court is the judge of where the balance should lie. I think there is real difficulty in distinguishing this from a political question to be decided by the elected arm of government. If it is properly within the judicial sphere, it must be on the footing that there is a plain case.

He goes on later to explain (para. 46) his view that, assuming Lord Sumption’s “requirement (iv)” to be good law,

the application of requirement (iv) in the toll of proportionality – “whether… a fair balance has been struck between the rights of the individual and the interests of the community” – needs at least to be modified. The contrast is not between private right and public interest. The journalist enjoys no heightened protection for his own sake, but only for the sake of his readers or his audience. If there is a balance to be struck, it is between two aspects of the public interest.

But the heart of the judgment is Laws LJ’s rejection of the argument that the stop was disproportionate because it obstructed responsible journalism. He accepts (para. 59) the Home Office and police evidence about the dangers if the material David Miranda was carrying were disclosed:

Laws LJ picks up on the “spiky” submission I noted in the hearing (para. 70)

that journalists, “like judges”, have a role in a democratic State to scrutinise action by government

and he rejects the idea that the national security responsibility of government must be balanced against journalists’ responsibility (para. 71):

In my judgment, taken at their height these propositions would confer on the journalists’ profession a constitutional status which it does not possess. They suggest, as Mr Greenwald’s evidence suggested, that journalists share with government the responsibility of measuring what is required by way of withholding publication for the protection of national security. Journalists have no such constitutional responsibility. They have, of course, a professional responsibility to take care so far as they are able to see that the public interest, including the security of the State and the lives of other people, is not endangered by what they publish. But that is not an adequate safeguard for lives and security, because of the “jigsaw” quality of intelligence information, and because the journalist will have his own take or focus on what serves the public interest, for which he is not answerable to the public through Parliament. The constitutional responsibility for the protection of national security lies with elected government: see, amongst much other authority, Binyam Mohamed [2011] QB 218 per Lord Neuberger MR at paragraph 131. The authorities I have cited on the importance of press freedom nowhere ascribe such a responsibility to the journalists’ profession.

His reasoning on proportionality culminates at para. 72:

The claimant was not a journalist; the stolen GCHQ intelligence material he was carrying was not “journalistic material”, or if it was, only in the weakest sense. But he was acting in support of Mr Greenwald’s activities as a journalist. I accept that the Schedule 7 stop constituted an indirect interference with press freedom, though no such interference was asserted by the claimant at the time. In my judgment, however, it is shown by compelling evidence to have been justified. I have described the testimony of Mr Robbins and DS Goode (and DS Stokley). There is no reason to doubt any of it. In contrast, (1) the evidence of the claimant and Mr Greenwald is unhelpful, to the extent I have explained. (2) There is no question of a source being revealed … (3) The fact that the material was stolen, though it does not exclude the law’s intervention to protect free speech, goes in the scales in favour of the defendants.

He rejects the argument that Schedule 5 of the 2000 Act should have been used instead of Schedule 7, a submission he says “lacks all practicality” (para. 61).

Laws LJ ends by agreeing with and following the ruling in Beghal v DPP that Schedule 7 is compatible in principle with the human rights (para. 82). In arguably the most weakly-reasoned part of the judgment, Laws LJ rejects the submission (based on cases such as Sanoma Uitgevers, Telegraaf Media and Nagla v Latvia) that human rights law means a judge must authorise the use of a power like Schedule 7. He says (para. 88)

Mr Kovats submits that the Strasbourg court has not developed an absolute rule of prior judicial scrutiny for cases involving State interference with journalistic freedom. In my judgment that is right. Although the court’s reasoning is sometimes expressed in very general terms (see in particular paragraphs 90 and 92 of Sanoma), in this area as in others its method and its practice is to concentrate on the facts of the particular case.

Two more aspects of the judgment are worth mentioning. Laws LJ (following the recent trend among British judges of taking a muscular and critical approach to the European Court of Human Rights) expresses some doubt about Strasbourg’s understanding, in Gillan & Quinton v UK, of the public law constraints on executive decision making in English law (para. 83),

in English law the executive never enjoys unfettered power. All State power has legal limits, for it is conferred on trust to be exercised reasonably, in good faith, and for the purpose for which it was given by statute; and where a discretionary power touches a fundamental right, its use must fulfil the proportionality principle. … the position in this jurisdiction is with respect more nuanced than the Strasbourg court would appear to acknowledge

There’s also an interesting discussion of the right to free speech (para. 43-46), of its nature and purpose, which leads to Laws LJ’s conclusion, mentioned above, that free speech in a case like this is the public interest of readers, rather than a private interest of journalists.

The judgment’s an almost complete victory for the government and the police; it’s not surprising that Glenn Greenwald has condemned it (as well as this country’s culture).

David Miranda was refused permission to appeal to the Court of Appeal – Laws LJ explained that, as the judgment was in his view to a great extent dependent on facts and judgment, he felt the Court of Appeal should decide whether it wishes to hear it. In effect David Miranda now has a week in which to seek permission from the Court of Appeal itself, because the police and Home Office have undertaken to abide by the terms of the injunction granted on August 30 (for what it’s worth).

I’d be surprised if the Court of Appeal doesn’t hear this case. While I doubt it’ll reverse today’s judgment, this case will become more interesting on appeal and when, perhaps, it reaches the Supreme Court.

The Court of Appeal’s judgment today in McLoughlin and Newell will be warmly welcomed by the government. The UK had been told by the European Court of Human Rights that current the system of “whole life orders” for the most serious offenders is in breach of rights, because of a lack of clarity about the possibility of a review of detention. But the Court of Appeal disagrees: it says the regime is wholly compliant with human rights. Our domestic law already provides, it says, for a satisfactory review.

As a result, the government does not need, in domestic legal terms at least, to issue any Prison Service Instruction amending the current Indeterminate Sentence Manual (although that written policy will be wrong and misleading if it does not do so). That saves ministers’ face. But it’s only the end of the matter if ministers seize this chance to make a quiet compromise.

It’s always been clear that domestic legislation provided for some sort of review. In 2008 the Court of Appeal ruled in R v Bieber that the Secretary of State’s exceptional power of release on compassionate grounds under section 30 of the Crime (Sentences) Act 1997 must, legally, be exercised compatibly with the Convention rights, whatever the written policy says. Prisoners can argue that their continued detention is not justified, and a decision not to release them can be legally challenged if it’s in breach of human rights law.

It’s this system that the European Court thought inadequate, in its Vinter judgment. The contrast between the wide discretion to release on compassionate grounds, as explained by the Court of Appeal in Bieber, and the apparently restrictive approach set out in the written policy, meant that prisoners are faced with uncertainty about the chances of review – and in those circumstances, whole life orders are inhuman or degrading punishment.

It’s this that the Court of Appeal has now disagreed with. Strasbourg was wrong, the Court of Appeal says (paragraph 29 of the judgment). The law is the law, whatever the government’s written policy in the Indeterminate Sentence Manual. That policy casts no doubt on the law, which is clear: prisoners can apply for compassionate release and their applications must be decided in a Convention-compatible way. English law actually does provide the necessary review. We were right in Bieber, the Court of Appeal is saying, and Strasbourg was wrong in Vinter.

The Court of Appeal’s approach is “muscular” (as I heard the BBC’s Clive Coleman explain earlier), and fits a pattern in which British courts, and judges in their speeches, are increasingly inclined to frankly disagree with Strasbourg, and entire into “dialogue” with the European Court – argument, we might say – rather than simply accept its rulings. This isn’t entirely new, but it is a trend. The Court’s approach was simpler and blunter than the more legalistic solution I came up with. And as I said above, it enables ministers to avoid amending their written policy to suit Strasbourg.

But will that end the matter? Not necessarily. It’s still possible for Newell to appeal to the Supreme Court, which I’d expect to agree, broadly, with the Court of Appeal. More importantly, if there’s no change to the Indeterminate Sentence Manual (which is all the European Court’s ruling required), it’ll be possible for a prisoner to apply again to Strasbourg and invite the European Court to reassert its own rightness, and UK judges’ wrongness.

Any such case would not simply rehash the question whether the written policy makes English law unclear, though it certainly would do that. It could also involve a serious examination of whether the Bieber type of review now being held up as adequate by the Court of Appeal really is a proper review of sentence of the kind Strasbourg has required. I’m not sure it is.

For one thing, the Bieber review favoured by the Court of Appeal places the burden on the prisoner to show he should be released – see para. 31 of the Court of Appeal judgment. Second, while in theory in can be applied for at any time, that leaves it up to the prisoner to judge when an application might be realistic, rather than providing a clear timetable known in advance, as the European Court seemed to envisage as being necessary.

Third, the requirement for a minister on review to comply with human rights merely means he must release on compassionate grounds where continued detention would be inhuman or degrading. That’s not necessarily the same as a full reconsideration of the merits of continued detention in the light of a range of factors such as the need for retribution and deterrence, the prisoner’s rehabilitation and the need for proportionality. It’s not, arguably (to quote paragraph 199 of the Vinter judgment),

a review which allows the domestic authorities to consider whether any changes in the life prisoner are so significant, and such progress towards rehabilitation has been made in the course of the sentence, as to mean that continued detention can no longer be justified on legitimate penological grounds.

Finally, there is a serious question whether a review by a minister is really sufficiently independent to comply with modern human rights standards. While that’s not been an issue in these cases so far, it may emerge if the dispute is taken any further.

So this could be the beginning of a continuing “dialogue” between our courts and Strasbourg, or, put less decorously, a ping-pong fight over the nature and timing of the required review. It wouldn’t be the first such dialogue. Sometimes, Strasbourg realises it’s got it wrong, and blinks first – for instance on the law of hearsay evidence. But sometimes it stares the domestic courts out, as it did on proportionality in social housing possession proceedings.

There is a very simple fix, though, that might avoid all that. The written policy in the Indeterminate Sentence Manual is now completely at odds with how the Court of Appeal says ministers must approach compassionate release – surely it makes sense simply to bring it into line. It’d be a nonsense to have plainly unusable and arguably unlawful guidance, and Ministers can say they’re amending it not because of any foreign judge’s diktat but to satisfy the Court of Appeal. If they do so, prisoners could still make fresh arguments that the Bieber review must be timetabled, is biased against them or is too narrow. But the “lack of clarity” argument that failed in Vinter would be dealt with; any fresh applications would not come before Strasbourg in a context in which its judges felt any need to reassert their own authority.

Of course making such a change is all the European Court required in the first place. It should have been done regardless of today’s judgment, would always have solved the immediate problem, and probably would have been done by now, except that backbenchers and the press would have seen it as weakness. Odd as it seems the Court of Appeal, by saying Strasbourg’s wrong, has freed the government to comply with Strasbourg’s ruling. That’s how politics works.

Last week at LSE, Joshua Rozenberg – Britain’s best known writer and broadcaster on law – spoke to Professor Conor Gearty about his career, and answered the audience’s questions on a wide variety of legal issues. It was a fascinating hour and a half for anyone interested in law and the media.

It was fun to hear about his difficulty over Law Society finals, his early career in a solicitors’ firm and how he became a BBC trainee; I wish there’d been more of that. But he covered a lot else, from juries and the Duggan inquest to conflicts between judges and politicians, from libel and family court tourism to legal aid, and from whole life orders and human rights to whether Supreme Court Justices are really lords. He also told us which two advocates he rates most highly. I can’t complain.

At one point Joshua Rozenberg suggested he’d now be a suburban solicitor, had he stayed in law, or even out of a job. But the way he dealt with the tricky first question made me wonder if he might also have done well in politics.

LSE hosts some terrific law-related events, and it’s impressive that they make them so accessible for those who can’t be there. I hope to be there again on February 5th for a debate about whistleblowers and secrecy – “What have you got to hide?” – with Hazel Blears MP, David Omand, Annie Machon and Matthew Ryder QC. I wonder if the Miranda judgment (Matthew Ryder appeared for David Miranda in the judicial review hearing last November) will be available by then.

If you prefer an audio-only version of the Joshua Rozenberg event, you can listen at the LSE’s website or in the player below.

The Supreme Court’s judgment today dismisses, unanimously, the appeals of the HS2 Action Alliance, Heathrow Hub Limited and Hillingdon and other local councils. They had tried judicial review to challenge the government’s plans in respect of High Speed 2, arguing that they don’t comply with two EU Directives. They lost in the High Court, and by a majority in the Court of Appeal. The Justices have ruled decisively against them – and refused to refer the case to the European Court of Justice.

The main interest in the case, for those not deeply involved with the campaign, is the constitutional point run by the councils, who argued that Parliament’s consideration of HS2 wouldn’t be a satisfactory decision-making procedure in terms of EU law. As Lord Reed put it at para. 73,

Put shortly, it is argued that the effect of (1) the whipping of the vote at second and third readings, (2) the limited opportunity which is provided by a debate in Parliament for the examination of the environmental information, and (3) the limited remit of the select committee following second reading, is to prevent effective public participation, contrary to article 6(4) of the EIA Directive.

Lord Reed’s judgment rejects this by holding that EU law does not subject Parliament to the sort of judicial scrutiny the councils wanted; and in any event, there was no indication Parliament’s procedures would be inadequate. The approach Lord Reed takes allows him to avoid the deeper constitutional waters he’d have had to swim, if the Directive meant what the councils said it did.

Interestingly, Lord Reed makes two references to judgments of the German Constitutional Court, at paras. 106 and 111, the second of these mentioning with approval a principle applied by the German court, that ECJ rulings should not be read as undermining national constitutions. German constitutional thinking is occasionally deployed by politicians in thinking about our constitutional relationship with the EU, and we may hear more about it from judges too, in future.

Lords Neuberger and Mance do address the deeper constitutional waters, in an obiter (in other words, not binding because not part of the court’s actual reasoning) passage in their joint judgment (para. 207). If EU law were held to require national judicial scrutiny of Parliament (contrary to article 9 the Bill of Rights 1689), they say

It is, putting the point at its lowest, certainly arguable (and it is for United Kingdom law and courts to determine) that there may be fundamental principles, whether contained in other constitutional instruments or recognised at common law, of which Parliament when it enacted the European Communities Act 1972 did not either contemplate or authorise the abrogation.

This is perhaps a warning shot across the bows of Advocates General and judges of the European Court of Justice: if you decide EU law overrides fundamental constitutional rules like this, we may have to qualify UK law’s acceptance of EU law, Lords Neuberger and Mance are saying. I hope their warning is heeded. It’ll be much better, and much wiser from both the UK and the EU point of view, if Lord Reed’s approach is accepted as a correct reading of EU law.

Although the Justices were unanimous on the outcome of the case, and the main issues were shared out between Lord Reed and Lord Carnwath (who dealt with an argument that a strategic environmental assessment was required before the government announced its plans), it’s interesting that no less than four of the other Justices felt the need to write their own concurring judgments.