I was once, fairly briefly, a Liberal Democrat. I say that not to introduce a snarky remark about the LibDems, with whom I now rarely agree (except on Europe), but so you can decide whether my views on the Lord Rennard fiasco are motivated by bias against them. I think there’s been conspicuous unfairness – both to his accusers and to him.

According to what Lord Carlile has written in Rennard’s defence, he’s accused as follows:

Three women had alleged that Chris Rennard placed his hand on their knees or thighs, outside clothing, while sitting next to them.

The fourth alleged he put his hand down the back of her dress during a group photograph at a party meeting. It was said that by those four alleged acts, Chris ‘brought the party into disrepute’ and should be expelled.

At least some of these women have made the allegations in broadcast interviews. Channel 4 originally broadcast them almost a year ago. Bridget Harris (from 2 minutes 40 seconds into the piece) tells us Lord Rennard touched her knee or leg two or three times before inviting her up to his room (and that she reported the matter to her line managers at the time). An anonymous woman tells us (from 4 minutes 15 seconds) Lord Rennard “shoved his hand down the back” of her dress during a group photograph, and Alison Smith (from 5 minutes 30 seconds) tells us of an incident in which she says Lord Rennard placed himself between her and another woman, and “started moving his hands down our backs to places they had absolutely no business being”. She says she told two MPs, the then chief whip Paul Burstow and Jo Swinson. In addition, Susan Gaszczak has said

his (Lord Rennard’s) hand started to rub the outside of her leg. She claims that when she moved away he kept getting closer and was brushing parts of her that she ‘didn’t want to be brushed’.

When she excused herself to go to the toilet, she says he followed her and said: ‘Why don’t we get a couple more drinks sent up to my room, where we can continue this conversation?’

Caution in writing about this is necessary, since we don’t know what allegations have actually been formally made, and we don’t know what evidence has been given. It’s worth noting that the four allegations I’ve listed as being made in the media (two “hand on leg” and two “hand down back” accusations, to put it very crudely) don’t appear quite to marry up with Lord Carlile’s version of the case (three “hand on knee or thigh” and one “hand down back”). Everything might be clear if we knew the full detail of everything alleged.

To be as clear, and fair, as I can, Lord Carlile says

Chris has always denied that he touched the women at all.

Under the constitution of the Liberal Democrats in England, article 2.6 (page 68 of the pdf) and membership rules,

Membership may be revoked in accordance with the procedure laid out in the Membership Rules by the Liberal Democrats in England or a Regional Party or Local Party (or, where appropriate, a Specified Associated Organisation which acted as the enrolling body) on one or more of the following grounds: …

(b) conduct which has brought, or is likely to bring, the Party into disrepute

Paragraph 7 of the Membership Rules (page 96 of the pdf) sets out the disciplinary procedure. The procedure is initiated by the local, regional or English party after receipt of a “valid” complaint about a party member (presumably a complaint isn’t “valid” if, for instance, it does not identify the member complained about).

Under paragraph 7.6 (page 97 of the pdf), the party can appoint an investigator to

evaluate the strength of the evidence in support of the complaint

and whose report

shall either comprise a charge or list of charges against the individual concerned, together with a list of persons who can substantiate them and a copy of all of the written statements gathered during the course of the investigation, or it shall indicate that, in the view of the investigator, there is insufficient evidence to proceed.

If the investigator decides there is enough evidence to proceed, then the next stage is a “disciplinary meeting” of the local or regional party executive or committee, under rule 7.9 (page 97 of the pdf). Presumably the disciplinary panel deciding the case is a quorum of the relevant committee, and its members arrive at a verdict by secret ballot, presumably by a simple majority. What is clear is that they apply the criminal standard of proof: the member is only guilty of bringing the party into disrepute if proved to have done so beyond reasonable doubt.

That being the case, it follows that, although the rules do not say so explicitly, the investigator’s decision on whether there is sufficient evidence to proceed must refer in some way to the criminal standard. Whether the evidence is sufficient or not is a question of how likely a disciplinary meeting would be to “convict”, in other words. So it’s perfectly rational for the investigator appointed, Alistair Webster QC, to have adopted a “reasonable prospect of conviction” test. Is it likely that the meeting would find Lord Rennard guilty to the criminal standard?

Before looking at the investigator’s decision, it’s important to make a couple of points about the evidence. First, that we don’t know what it is. And secondly, that Lord Carlile claims the investigator saw evidence which undermined the complaints:

In relation to the fourth woman’s allegation, we have the picture, and the photographer provided a statement: neither supported the claim.

In relation to one of the other three women, we provided a devastating item of contradictory evidence that it would not be appropriate to publish.

In relation to another, we were in possession of totally contradictory potential witness evidence that we held back out of respect for requested privacy.

Of course it’s also fair to say that Lord Carlile does not explicitly argue that either the photograph or the photographer actually contradict the “hand down dress” allegation; just that they don’t give it support. We can make nothing of the “devastating item” of contradictory evidence without knowing what it is, and the other potentially contradictory evidence seems not to have been before Alistair Webster at all.

Alistair Webster’s report hasn’t been published, so all we have is this statement which explains the decision in his report. The key passages seem to me to be these:

the evidence suggests that Lord Rennard’s behaviour has caused distress to a number of women …

I have not made any findings of fact, but rather I offer my considered view on the likelihood that the allegations against Lord Rennard could be proved beyond reasonable doubt. …

My view, judging the evidence as a whole, is that there is a less than 50% chance that a charge against Lord Rennard could be proved to the requisite standard.

In my opinion, the evidence of behaviour which violated the personal space and autonomy of the complainants was broadly credible. However, it is my judgment, considering all of the evidence collected, that it is unlikely that it could be established beyond reasonable doubt that Lord Rennard had intended to act in an indecent or sexually inappropriate way. Without proof of such an intention, I do not consider that such a charge would be tenable. …

It is my view that Lord Rennard ought to reflect upon the effect that his behaviour has had and the distress which it caused and that an apology would be appropriate, as would a commitment to change his behaviour in future.

I’ve stressed several times already how hard it is to comment on this without having seen the written evidence – and without having seen Alistair Webster’s actual report, of course. Had Alistair Webster simply said he thought the evidence too weak to enable a disciplinary meeting to be sure of guilt, I’d simply have had to accept that. But Webster goes beyond that.

He says

the evidence of behaviour which violated the personal space and autonomy of the complainants was broadly credible.

But if the evidence was credible, that means members of a disciplinary panel could have believed it. Only a simple majority seems to be required, remember: not a unanimous verdict or even a heightened majority, as in a jury case. And remember, Lord Rennard apparently denies touching the women at all. So once you form the view that the evidence of touching is credible, in spite of his denial, how can you go on to conclude that the majority of a panel probably wouldn’t think the touching happened? I think credible evidence of touching gets this particular allegation quite a long way, if I have a reasonably accurate understanding of the evidence on either side.

Ah, you might object: the question isn’t whether a disciplinary meeting would believe the women’s stories, but whether it could be sure beyond reasonable doubt. Yes, that’s a fair point. But I’m not sure the standard of proof makes as much difference here as it first appears. Is there all that much difference between believing a man probably touched a woman (in spite of his denials) and feeling sure he touched her? An excessive focus on the epistemological difference between the two as decisive can amount to simply being spooked, in an abstract way, by the criminal standard of proof.

Alistair Webster also threw the complaint out because

it is unlikely that it could be established beyond reasonable doubt that Lord Rennard had intended to act in an indecent or sexually inappropriate way

but it’s not clear to me why he thought such an intention would have had to be proved. No such intention is even required for a conviction for sexual assault under section 3 of the Sexual Offences Act 2003. It seems to me the investigator’s decision is open to serious criticism on this ground alone.

Of course I bear in mind the important caveat that I haven’t seen the evidence myself. Still, Alistair Webster’s conclusion seems difficult to understand based on what he says about that evidence. I can’t help feeling that considering the evidence “broadly credible” would have been more consistent with allowing the complaint to proceed to the disciplinary panel than with concluding it was insufficient to go forward. And it seems to me he’s imported an excessively high requirement of intention into his analysis.

It took a long time for these women’s complaints to be taken seriously, and now there must be doubt about whether the evidence has been dealt with satisfactorily. They, certainly, have been dealt with unjustly.

And they’re not the only ones. Lord Rennard has I think seen all the evidence against him, but he hasn’t seen Alistair Webster’s report itself. The explanation we’ve been given is that lawyers have advised to do so would breach the Data Protection Act 1998. I imagine the advice must be that the report contains sensitive personal data under section 2 of the Act, because it relates to someone’s “sexual life” – although it seems a stretch to see allegations about touches on knees, legs and so on as being really about anyone’s sexual life. If that’s the view LibDem lawyers take, though, then they’re probably right that consent is necessary for disclosure under Schedule 3 of the Act, the only applicable paragraphs of which seem to require consent. We’re left to wonder who might be withholding consent, assuming it’s been asked for.

I’m not sure how Alistair Webster came to say

Lord Rennard ought to reflect upon the effect that his behaviour has had and the distress which it caused and that an apology would be appropriate

given that he also says he made no findings about Lord Rennard’s behaviour, and given that the investigator has no function except to evaluate the strength of the evidence. In my view, he or the Liberal Democrats should clarify whether he made that suggestion in his report and on his own initiative, or whether the suggestion of an apology was a political idea introduced by anyone else. The apology proposal introduced a dangerous “compromise” element into the case, which has been unhelpful to say the least.

But that would have been a minor issue, had it been left to Lord Rennard to make the apology or not, in his own time.

What is certainly unfair is to hang fresh disciplinary proceedings against Lord Rennard on his failure to give the suggested apology within a few days of Alistair Webster’s statement.

First, it’s an obvious attempt to have a second bite at the cherry. Lord Rennard has escaped censure on the complaints of disrepute by sexual harassment, and now the party is using the non-apology to reformulate the same complaint on collateral facts. Second, it effectively promotes what was only a suggestion, made in a statement going beyond the terms of the investigator’s task, into a form of compulsory sanction. That has to be wrong. It’s even more wrong unless Lord Rennard was expressly warned that there was a time limit within which he had to make his apology. If the party is using disciplinary action in order to enforce his apology, that would be an outrageous abuse of the disciplinary procedure.

Nor it is logical. The complaint must be that Lord Rennard’s failure to apologise brings the party into disrepute in the context of the allegations against him and what Alistair Webster has said. There’s a cloud hanging over the party, in other words, that, undispersed, brings disrepute.

The trouble is, Alistair Webster’s statement means there is no disreputable cloud in the first place. If a failure to apologise now means the party is in disrepute, that can only be because Lord Rennard’s conduct and failure to apologise together have that effect. But if you say x is disreputable unless y is added to or subtracted from it, then you must also be saying x – what’s left unapologised for – is disreputable in itself. Yet in respect of x, Lord Rennard has already been cleared.

The party can’t have it both ways. If the evidence against Lord Rennard suggested he’d brought the party into disrepute unless he apologised, then Alistair Webster was wrong, and the case should have gone forward to a disciplinary meeting. Putting it this way shows how the party has managed both to deal unfairly with the complaints, and now to deal unfairly with Lord Rennard.

It’s been suggested he could seek a judicial review – but I don’t think that can be right, procedurally speaking. The Liberal Democrats aren’t a body with public functions, and the question of Lord Rennard’s membership and conduct are private matters rather than questions of public law.

What he may be able to do is sue the party for breach of contract. The Liberal Democrats are I think an unincorporated association, which means the relationship between its members is governed by the law of contract, the terms of the contract being the party constitution and rules. Lord Rennard’s potential claim would be that the party has in effect breached its contract with him by failing to apply the rules properly (the investigator having wrongly exceeded his remit, and the party having unfairly taken fresh action on the basis of the investigator’s false step). He could conceivably seek an injunction to prevent the party from taking the fresh disciplinary case any further. None of this would be easy – but if I were advising the LibDems today, I don’t think I could tell Nick Clegg he’s safe.

Equally, the women who’ve accused Lord Rennard have the same contractual rights (assuming they’re all still members). They could sue too, if they think the party’s misapplied the disciplinary process.

Can this be solved without legal proceedings? My only suggestion is that Lord Rennard or his accusers (or both) should take their cases to the Appeals Panel for England under article 9.4 of the the constitution of the Liberal Democrats in England (page 88 of the pdf) on the basis that either the initial or the fresh disciplinary procedures (or both) were not properly carried out in accordance with the rules, so that a member’s rights under the constitution were breached. That’d have the advantage that the Appeals Panel’s powers appear unlimited – so it could even quash the original investigator’s report and order a reinvestigation from the beginning.

Politicians tend to favour political solutions to everything, which may explain why grandees like Lord Greaves suggest this can be settled by getting everyone to talk. But no political or presentational strategy can get the Liberal Democrats out of the hole they’ve dug.

Unless you’re a Supreme Court Justice or a retired Law Lord, this book offers you the best available insight into how our highest court operates. In fact, even if you are on the Supreme Court, you’re likely to learn something from Final Judgment.

Based on interviews with twenty-seven Law Lords and Supreme Court Justices, and others involved in what Professor Paterson calls “dialogue” with them – barristers, Court of Appeal judges and others – as well as study of Lord Bingham’s notebooks and analysis of judgments including statistical analysis based on data gathered by Chris Hanretty, Final Judgment is a detailed study of how our highest court has operated and operates now as a human, social institution.

The book straddles the end of the House of Lords and the beginning of the Supreme Court, which seems to have been accidental – but what’s changed over the years tells us a lot about the court now. Since 1970, for instance, while just about half the court’s load still consists of private commercial or family law, the other, public law, half of its work has changed dramatically, human rights and judicial review cases having since 2000 largely pushed out the criminal and tax law cases that used to be heard by the Lords. And hearings before the Supreme Court now last just over two days on average – half as long as in the seventies.

Some Lords used apparently to think preparation for cases a bad thing. Now, it seems Supreme Court Justices all read the papers thoroughly, so that we have what Paterson calls “hot benches”. But still, as Lord Neuberger says, there are “impressionists” like him who prefer to leave some room for a case to firm up in the mind as it’s being heard in court, and “pre-Raphaelites” who like to be on top of every legal detail before the first advocate speaks. If I were on the court the sheer interest of the work would have me obsessively preparing in a pointilliste manner, I suspect, but I can understand why some might think listening to an argument first, before embarking on the sort of intense thought that inevitably draws you into forming a preliminary view, might be a more impartial and ultimately better method of judging.

Half the book, 140 pages of just over 300, is about the internal dialogue among the judges. Again the temporal scope of the book is a strength, and Alan Paterson’s ability to compare modern judges with those of earlier eras (his earlier book The Law Lords was published in the 1980s) gives the book real depth. Inevitably his views of some of our famous judges come through strongly, Lord Reid being cast as the hero (with Lord Bingham in a pretty strong supporting role), Lord Diplock the villain – a brilliant but dark eminence, impatient and bullying with counsel, who manipulated and, according to Lord Wilberforce, “mesmerised” his colleagues. If you’re anything like me you’ll be intrigued by the ways Senior Law Lords and Supreme Court Presidents have managed the court, and how judges try and often fail to influence each other by interventions in court, discussion outside and in draft judgments.

I was surprised to find out that the Justices’ main collective discussion of a case they’ve been sitting on takes place in one relatively short meeting – what Paterson calls the “first conference” – usually immediately following the hearing. Although the first conference is sometimes held over till the following day, and there are sometimes further meetings, I think if I were on the court I’d like half a day at least to prepare for the one big opportunity I’d have to persuade my colleagues (and be persuaded by them) face to face and all at once.

At the first conference each judge outlines his or her position in turn, at some length, beginning with the most recently appointed – although since 2011 these “seriatim” presentations have been followed by a more fluid discussion, and Lord Neuberger – something of a self-confessed “speed merchant”, we learn – apparently prefers simply to indicate where he agrees with others rather than setting out his positions in full. The first conference is where it’s decided which judge should write the “lead judgment” setting out the facts and the majority view – though the majority may well shift later, as Justices circulate what they write. A key section of the book looks at the dynamics of how judicial minds are changed, with personality, time and space – where each judge’s room is located in relation to the others’ – each playing an important role. Lord Brown’s old room in the House of Lords seems to have been the nerve centre of the court in his time.

Paterson tells us “the drafting stage is the key stage of the decision-making process” in our highest court. In the past, Lord Hoffmann and others have tried to influence others by circulating their judgments early, though in 2012 the Justices apparently agreed that the allocated lead judgment should always be circulated first. There’s a fascinating discussion of recent attempts to limit the number of separate concurring as well as dissenting judgments – I’m on the side of those who favour a diversity and multiplicity of judgments, which I’m not sure necessarily is the sign of an unherdable cat. I was once a civil servant and can team-play with the best, but in some contexts the search for consensus can be pushed too far. In politics, agreement must sometimes be reached even at the cost of coherence; but when it comes to judicial reasoning, intellectual clarity matters even more, and should not be compromised for false unity. The weakness of the European Court of Justice is that it’s forced into negotiating single judgments, which sometimes make little sense. The Supreme Court should avoid that at all costs.

The book covers the “dialogue” with Parliament and the government (including discussion of Charles Clarke’s odd attempt to engage with the Law Lords when he was Home Secretary, an idea I was extremely unsympathetic to at the time), with Scotland and with other courts – particularly the Court of Appeal and the European Court of Human Rights. Finally, it looks at the influence of academic and of judicial assistants.

Final Judgment almost begins with the controversy following the Assange judgment, and flatteringly this blog even gets a couple of mentions in a footnote. It’s a typical and telling passage in which Alan Paterson combines analysis of the legal principle behind the controversy – that judges should decide cases on the basis of legal arguments discussed in court rather than on some other legal basis they think of later – with a detailed look at the social and practical reality of what happened. We’re left with the impression of an imperfect though impressive institution, whose life is governed by personality, events and surprise just as much as it is by precedent and principle.

What I’ve not told you is how unusually gripping Final Judgment is. Reading it over the Christmas holiday, I found it hard to put down – something I don’t often feel when reading academic works. More than anything else, Final Judgment is a work of human intelligence about the inner workings of one of our most important institutions. I’ll be rereading it soon, and revisiting it often.

It’s available from Hart Publishing, Wildy’s, Hammick’s and Hive as well as Amazon.

In July I argued against Lord Sharkey’s proposed statutory pardon for Alan Turing, for a number of reasons.

First, the pardon proposed was not intended to affect Turing’s conviction. I wondered why not. Although the Crown’s prerogative power to grant a pardon is traditionally limited to miscarriage of justice cases

once Parliament decides it should act, there’s no reason for it to feel bound by the limitations of prerogative powers. Parliament is sovereign. If MPs and peers want, by Act of Parliament, to disregard Alan Turing’s conviction, they can do so. So why don’t they? …

Parliament can, if it likes, retrospectively repeal the legislation under which he was convicted, and make everything done under it a legal nullity (if need be making clear that no legal action can now be taken against anyone for anything they did under it).

More importantly, I thought the proposal wasn’t about Alan Turing at all, but about us:

Peers and the government just want to do something symbolic. But who benefits from the symbolism? Not Alan Turing. This pardon, well-intentioned though it undoubtedly is, is not only pointless but self-indulgent. It would make only us only feel that we’re relieved of the burden of the past.

Well, now there’ll be no statutory pardon at all. Instead the Queen has granted one under the prerogative power of mercy, on the advice of the Lord Chancellor and Justice Secretary, Chris Grayling. In reality, the government has decided unilaterally to pardon Alan Turing.

If anything, there’s even more reason to object to this than there was to Lord Sharkey’s bill, whose second reading government whips objected to in the Commons last month. Lord Dubs complained about that in the House of Lords the following week, and last night Lord Bassam made the same point on Twitter:

Glad that Alan Turing has finally been granted a pardon. But why did Tories in the Commons block the bill giving him a pardon last month?

— Steve Bassam (@SteveTheQuip) December 24, 2013

This pardon won’t touch Turing’s conviction any more than the statutory one would have. But the new argument against the government’s approach is that, in order to claim the main credit for this PR gesture, it’s had to monkey with the traditional grounds for exercise of the prerogative of mercy.

The reason Lord Sharkey introduced his bill was precisely because a Royal pardon wasn’t an option. As the then justice minister Crispin Blunt explained in the Commons

It is the long-standing policy not to exercise the royal prerogative of mercy where a person was correctly convicted under thelaws that existed at the time. The applicant must be technically and morally innocent, as my hon. Friend has said. My hon. Friend the Member for Milton Keynes South has said that we should clear Alan Turing’s name. A pardon under the royal prerogative of mercy would not actually affect Alan Turing’s conviction; only a court can quash a conviction and, in that sense, clear someone’s name.

Much as we now feel it outrageous that Alan Turing’s behaviour was treated as a criminal offence, he was guilty of the contemporary offence. To grant him a pardon under the royal prerogative would change the basis on which such pardons are normally given.

How does the government explain this departure from its own policy? In its press release, it says

A pardon is only normally granted when the person is innocent of the offence and where a request has been made by someone with a vested interest such as a family member. Uniquely on this occasion a pardon has been issued without either requirement being met, reflecting the exceptional nature of Alan Turing’s achievements.

Turing’s achievements, then, provide the only reason for doing this; and no reason whatever is given for the suggestion that this pardon be unique.

But why should mercy be so strain’d? If the prerogative can now be exercised in favour of one man convicted historically under a law we now think oppressive and wrong, why shouldn’t all those convicted under the same law be treated the same? Why shouldn’t those convicted of abortion-related offences in the middle of the twentieth century be pardoned too? And why not those convicted of witchcraft-related offences in centuries gone by? Many if not all those victims of lawful atrocity must have been tortured before being killed. Ministers surely can’t deny them pardons just by asserting that Alan Turing is “unique”. That’s a question-begging reason, so no reason at all. Why is Turing “unique”?

Even if some new, wider approach to mercy applies only to offences of gross indecency (which would be hard to defend rationally), and only applies to people of exceptional achievement (why should it?), there’s still the case of Oscar Wilde to be considered. I suppose an argument could be made – I certainly wouldn’t make it myself – that Wilde’s plays, poetry, essays and fiction are minor achievements compared to Alan Turing’s. But whatever you think about that, the prerogative of mercy should not depend on a cabinet game of Great Britons. If it’s right to grant this pardon at all, then some conception of justice should motivate it, not one person’s arguably unique individual merit.

So I’m afraid this arbitrary departure from policy is this government’s latest constitutional whim. It’s certainly not the first.

But the pardon’s wrong anyway. Alan Turing was a great man, treated with shameful cruelty and ingratitude by this country. We ought to feel shame and sorrow about that, now and every time his name is mentioned in future. One of the objectionable things about this pardon is that on some dimly-perceived cultural level it implies official permission to stop feeling that way; it’s a formal announcement that something’s been put right, as though the Alan Turing story can be rewritten with a happy ending. But unless you get your moral sentiments from Hollywood you know nothing’s been put right or ever will be, and that it’s no good cheering ourselves up by pretending it has.

I’m against this irregular, irrational and arbitrary prerogative pardon, even more than I was against the proposed statutory pardon I wrote about in July.

On Wednesday the Supreme Court of India ruled that section 377 of the Indian Penal Code, which makes provision for “unnatural offences”, is compatible with the Constitution of India. The Supreme Court reversed the judgment of the High Court of Delhi, which had ruled section 377 unconstitutional and inapplicable to sex between consenting adults.

The Supreme Court’s judgment is surprising – and not just for its outcome, which has disappointed many Indians. What’s surprising to me is how poorly reasoned the judgment is, particularly in comparison with the High Court ruling it sets aside.

The Indian Penal Code was drafted by the British in 1860. It’s odd that British rulers did this for India, when the criminal law of England and Wales, at least, has never been codified (in spite of the Law Commission’s having drafted a code). And, just as we take pride in the contribution of British lawyers to the drafting of the European Convention on Human Rights, perhaps the British can also take some pride in the fact that this legacy of the Raj has continued to serve India so long after independence.

But the IPC is a product of its time – and nowhere is this more obvious than in section 377, which few Brits are likely to feel proud of today:

Unnatural offences Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.

What exactly constitutes carnal intercourse has varied and developed over the years; but it seems clear now that it criminalises consensual oral and anal penetrative sex. That’s why the Naz Foundation went to the courts to challenge it under the Constitution – specifically article 21, which protects life and personal liberty, article 14 which guarantees equality before the law and article 15 which outlaws sex discrimination.

Initially the case was thrown out in 2004 by the High Court of Delhi as an academic, hypothetical challenge, since the Naz Foundation was not itself threatened with prosecution under section 377. But in 2006 the Supreme Court reversed that ruling and sent it back.

Chief Justice Shah and Justice Muralidhar gave judgment in the High Court of Delhi in 2009 – and a pretty impressive judgment it is.

From paragraph 29 onwards, the Delhi judges analysed how a right to privacy (though not explicitly guaranteed in the US Constitution) has developed in America since Justice Brandeis’s dissent in Olmstead v United States in 1928, through to Griswold v Connecticut and Roe v Wade in the sixties and seventies. The judgment traced a similar development in India from Kharak Singh v State of Uttar Pradesh through Gobind v State of Madhya Pradesh to more recent cases in which a right to privacy has been seen as implicit in the article 21 right to liberty .

From there, the High Court considered international human rights case law on privacy and homosexuality, in particular the judgments of the European Court of Human Rights in Dudgeon v UK and Norris v Ireland in the 1980s (paragraph 53 of the Delhi judgment), the Toonen v Australia complaint to the UN Human Rights Committee and the judgment of the Constitutional Court of South Africa in National Coalition for Gay & Lesbian Equality v Minister of Justice in the 1990s (paragraphs 55-56) and the US Supreme Court’s judgment in 2003 in Lawrence v Texas. In all of those cases, penalties for homosexual acts were ruled in breach of explicit or implicit privacy rights.

At paragraphs 75 and 70 of its judgment, the High Court of Delhi ruled that neither the enforcement of morals nor public disapproval is a compelling state interest capable of justifying an interference with privacy. At paragraph 80 it concluded that criminalising homosexuality was contrary to the morality of the Constitution of India. There is no evidence from any country that legalising homosexual acts would “open the floodgates” of deliquency, it said (paragraph 86) and so, the High Court concluded (paragraph 87), section 377 is unnecessary and in breach of article 21 of the Constitution.

As far as the equal protection of law is concerned, guaranteed by article 14 of the Constitution of India, the High Court said criminalising consenting sex between adults in private without evidence of serious harm is arbitrary and unreasonable (paragraph 92) and that, although on its face section 377 applies to a lot of straight sex, in its operation it ends up unfairly targeting homosexuals (paragraph 94). The inevitable conclusion, the High Court said, was that section 377 unfairly discriminates, and so breaches article 14.

In the least convincingly reasoned aspect of its judgment, the High Court ruled without much reliance on international case law (paragraphs 99-104) that although sexual orientation is not expressly prohibited by article 15 of the Constitution, it’s a ground of discrimination analogous to sex, and therefore not permitted.

The High Court said (para. 108) that it had to strictly scrutinise the policy reasons advanced in justification of the discrimination, in accordance with Anuj Garg v Hotel Association of India. But on any standard of review (para. 113), singling out the gay community for criminalisation based on moral disapproval breaches the article 15 sex equality guarantee.

Finally the High Court considered the need to defer to the democratic legislature (para. 118) but said the degree of deference must depend on the subject matter in any case. In matters of high constitutional importance or where fundamental rights are breached, less deference is appropriate. This is just such a case, the Court said (para. 123).

Its conclusion was not to strike down section 377 in its entirety. As well as consensual sex between adults, section 377 also criminalises anal and oral sex with children – and with adults without consent – so the High Court preferred to “read down” the provision, interpreting it as only applying in those cases only.

If you’ve read this blog much in the past you’ll know I’m a fan of Parliamentary sovereignty, and would not want the UK Supreme Court to be able to strike down Acts of Parliament through this sort of judicial review of legislation. I think major social change, and human rights progress, is best achieved through the political process – and most likely to endure that way.

But India, like many of the world’s great democracies, does have judicial review in that sense; and the Delhi High Court’s judgment was an example of constitutional judicial review done well. It analysed section 377 rigorously in terms of Indian case law and the now considerable body of genuinely analogous decisions from Europe, America and the Commonwealth. Each step in the Court’s analysis was reasoned, and step by step the Court’s approach became more persuasive. At times the Court’s language turned a little grand – perhaps even became moving, according to your taste – but that’s fair enough in a landmark human rights judgment. Its ultimate conclusion is hard to argue with.

No judgment’s perfect of course, and few legal conclusions are completely beyond debate. I’ve already mentioned one part of the reasoning that I think was weak, and those with greater knowledge of Indian constitutional law may see other flaws. So perhaps someone could construct a respectable legal case against the Delhi judgment as a whole.

You won’t find that case, though, in the Supreme Court ruling setting the Delhi judgment aside.

The meat of the judgment begins with the need for judicial restraint, or deference. Both before (para. 26) and after (para. 28) quoting a number of cases all of which stress the power to strike down legislation in an appropriate case (para. 27), Justices Singhvi and Mukhopadhaya simply state the principle that all legislation should be presumed constitutional. On this basis they say (para. 32) they must exercise self restraint in considering section 377 because

the Legislature has chosen not to amend the law or revisit it … Parliament has not thought proper to delete the provision.

and that (para. 33)

unless a clear constitutional violation is proved, this Court is not empowered to strike down a law merely by virtue of its falling into disuse or the perception of society having changed as regards the legitimacy of its purpose and its need.

Of course what’s at issue is not the striking down of section 377 at all, but whether it should be read in a limited way, as the Delhi court held.

There follows a long digression explaining the history and meaning of section 377, via a consideration of the history of English law in this area and Indian case law. From that, it’s worth just quoting this interesting passage from paragraph 38:

All the aforementioned cases refer to non consensual and markedly coercive situations and the keenness of the court in bringing justice to the victims who were either women or children cannot be discounted while analyzing the manner in which the section has been interpreted. We are apprehensive of whether the Court would rule similarly in a case of proved consensual intercourse between adults. Hence it is difficult to prepare a list of acts which would be covered by the section. Nonetheless in light of the plain meaning and legislative history of the section, we hold that Section 377 IPC would apply irrespective of age and consent.

So the Supreme Court Justices seemed to doubt whether s377 covers consensual sex anyway – in which case, the Delhi High Court’s interpretation of it must have been correct. Yet they manage to conclude it has a “plain meaning” that’s much wider. After that the Supreme Court announces somewhat suddenly (para. 39)

We shall now consider the question whether the High Court was justified in entertaining challenge to Section 377 IPC despite the fact that [the Naz Foundation] has not laid factual foundation to support its challenge.

Interestingly the Supreme Court then refers to two cases in which challenges were unsuccessful because of insufficient pleadings and grounds having been advanced – which is not necessarily the same thing as an insufficient “factual foundation” having been proven.

In the first of the two cases, Southern Petrochemical Industries v Electricity Inspector, the appellants were trying to raise a new issue they’d not even argued at the High Court stage. The Supreme Court found against them, saying (para. 71)

The issue that the 2003 Act in violation of the equality clause contained in Article 14 of the Constitution of India was not raised before the High Court … A ground taken, however, must be based on a factual foundation. For attracting Article 14, necessary facts were required to be pleaded. The foundational facts as to how Section 14 of the 2003 Act would be discriminatory in nature have not been stated at all.

Interestingly the Court in Southern Petrochemicals had gone on to say at paragraph 72, in words noticeably not quoted by Justices Singhvi and Mukhopadhaya:

such factual foundation, unless is apparent from the statute itself, cannot be permitted to be raised and that too for the first time before this Court.

The emphasis is mine. In contrast to Southern Petrochemicals, the Naz Foundation argued the entirety of its case thoroughly in the Delhi High Court – and in any event, the factual foundation for its appeal was apparent from section 377 itself (which, let’s not forget, the Justices themselves agreed had on its face a “plain meaning”).

The other case the Court relies on, Seema Silk and Sarees v Director of Enforcement, was a hopelessly argued case in which the appellants hadn’t even put before the court their own “writ petition” whose rejection they were appealing against. That was the total lack of foundation the judges complained about.

Nonetheless, on the basis of that very dubious authority the Supreme Court found (para. 40) that the Naz Foundation’s 107 page submissions were

singularly laconic

and that it had

miserably failed to furnish the particulars of the incidents of discriminatory attitude exhibited by the State agencies towards sexual minorities and consequential denial of basic human rights to them.

Justices Singhvi and Mukhopadhaya see the very width of section 377 as justifying it (para. 38)

Section 377 IPC does not criminalize a particular people or identity or orientation. It merely identifies certain acts which if committed would constitute an offence. Such a prohibition regulates sexual conduct regardless of gender identity and orientation.

In ruling that it does not breach the equal protection (article 14) and sex equality (article 15) guarantees in the Constitution, the Justices say (para. 42)

Those who indulge in carnal intercourse in the ordinary course and those who indulge in carnal intercourse against the order of nature constitute different classes and the people falling in the later category cannot claim that Section 377 suffers from the vice of arbitrariness and irrational classification. What Section 377 does is merely to define the particular offence and prescribe punishment for the same … Therefore, the High Court was not right in declaring Section 377 IPC ultra vires Articles 14 and 15 of the Constitution.

This is an extraordinary piece of reasoning. It’s common in discrimination law to ask whether two classes of people really are in analogous situations to each other. For instance, it’s not obvious that an unmarried couple are in an analogous situation to a married couple and must therefore always be treated in the same way. Discrimination law is only about treating like cases alike.

But given the wide “plain meaning” of section 377 (which, by the way, the Justices concluded outlaws quite a bit of non-penetrative penile sexual activity) it seems extraordinary to see people who stay within the strict bounds of this law as in a different class from others such that they’re not comparable to them. On this view, the Kama Sutra is a guide for the criminal class. It’s astonishing that this is the Supreme Court of India’s conclusion on the equal protection and sex discrimination aspects of the case.

Yet if anything, things get worse from there. At paragraph 43, in their first mention of the right to liberty and privacy, the Justices say

a miniscule fraction of the country’s population constitute lesbians, gays, bisexuals or transgenders and in last more than 150 years less than 200 persons have been prosecuted (as per the reported orders) for committing offence under Section 377 IPC and this cannot be made sound basis for declaring that section ultra vires the provisions of Articles 14, 15 and 21 of the Constitution.

I’m not sure this amounts to much more, in legal terms, than saying that not many people’s rights can have been breached, so they can’t have been breached at all.

The Supreme Court’s only other reasoning on the privacy aspect of the case comes at paragraph 51, when the Justices discuss the claim that section 377 is used to harrass gay people:

this treatment is neither mandated by the section nor condoned by it and the mere fact that the section is misused by police authorities and others is not a reflection of the vires of the section.

The Justices then purport to support what they say by referring to S. K. Sharma v Union of India. But even the passage they quote makes it clear Sharma merely said that legislation which is in principle constitutional cannot be rendered invalid by the mere possibility that it could be abused:

a contention was raised that a provision of law may not be discriminatory but it may land itself to abuse bringing about discrimination between the persons similarly situated. This court repelled the contention …

… if a statutory provision is otherwise intra-vires, constitutional and valid, mere possibility of abuse of power in a given case would not make it objectionable …

… The possibility of abuse of a statute otherwise valid does not impart to it any element of invalidity.

But the Naz Foundation never argued that. Their case isn’t that section 377 is okay in principle, but might be misused. What they say that gay people are actually harassed, and that this is because section 377 breaches rights in principle. Again, the Justices seem to have based an important conclusion on the dubious use of precedent. Nor, by the way, do the Justices explain what they think would be a proper, non-harassing use of section 377.

In the climax of their judgment (para. 52), Justices Singhvi and Mukhopadhaya dismiss the relevance of international human rights case law in this area:

In its anxiety to protect the so-called rights of LGBT persons and to declare that Section 377 IPC violates the right to privacy, autonomy and dignity, the High Court has extensively relied upon the judgments of other jurisdictions. Though these judgments shed considerable light on various aspects of this right and are informative in relation to the plight of sexual minorities, we feel that they cannot be applied blindfolded for deciding the constitutionality of the law enacted by the Indian legislature.

The Justices go on to cite three cases in which foreign experience was said not to be relevant to Indian conditions – two of them about the retention of capital punishment, the other, Surendra Pal v Saraswati Arora, about undue influence and marriage. The Justices cite a long extract from the Surendra Pal case, including this passage

We have had occasion to point out the danger of … statements of law enunciated and propounded for meeting the conditions existing in the countries in which they are applicable from being blindly followed in this country without a critical examination of those principles and their applicability to the conditions, social norms and attitudes existing in this country.

and this one (in which the Court was actually quoting from Jagmohan Singh v State of Uttar Pradesh):

No doubt an objective and rational deduction of a principle, if it emerges from a decision of foreign country, rendered on pari materia legislative provisions and which-can be applicable to the conditions prevailing in this country will assist the Court in arriving at a proper conclusion. While we should seek light from whatever source we can get, we should however guard against being blinded by it.

But Justices Singhvi and Mukhopadhaya simply reject the principles laid down in American, Commonwealth and European cases on privacy and criminalising homosexuality. They don’t explain why the Delhi High Court applied them “blindfold”, or provide any

critical examination of those principles and their applicability to the conditions, social norms and attitudes existing in this country

Nor do they consider whether or not the cases deal with directly analogous (in pari materia) provisions, or why those principles can’t be applied in Indian conditions. The Justices dare not explain why they think Indian society can’t withstand the Delhi High Court’s conclusions.

Judicial restraint is a virtue in a court whose rulings can overrule an elected parliament. But even restraint can be excessive. When bad reasoning on spurious authority justifies stubborn inactivism in the face of a compelling claim, “restraint” has become the vice of judicial reaction.

I hope this judgment is reviewed under article 137 of the Constitution of India, and that the Delhi High Court’s approach is vindicated.

In his excellent book, Nick Davies explains what he means by “Flat Earth news”:

A story appears to be true. It is widely accepted as true. It becomes a heresy to suggest that it is not true – even if it is riddled with falsehood, distortion and propaganda.

The process of Flat Earth news making is assisted by the media. The heart of modern journalism, Davies says, is

the rapid repackaging of largely second-hand material, much of it designed to service the political or commercial interests of those who provide it.

This, Davies says, explains why someone with an agenda

can simply slide his unreliable publicity stunt direct into the mass media and see it relayed around the world.

Last weekend a comment piece by Christopher Booker was published on the Telegraph website (at 6.06 pm on November 29) and in the Sunday Telegraph. Its title,

‘Operate on this mother so that we can take her baby’

implied that someone wanted surgery to be performed on a pregnant woman for the purpose of taking her baby from her. Booker reported that a pregnant Italian woman visiting England, whose two children

were with her mother back in Italy

had had

something of a panic attack

whereupon she was “sectioned” under the Mental Health Act. Five weeks later, Booker told us, the woman was sedated. When she woke up

She was not allowed to see her baby daughter, and later learnt that a High Court judge, Mr Justice Mostyn, had given the social workers permission to arrange for the child to be delivered.

At a later court hearing in October 2012, Booker told us, the mother was

told she would be escorted back to Italy without her baby

And in February 2013 a judge in Chelmsford ruled that the baby should be placed for adoption. Essex Social Services, Booker told us, have refused to place the child in Los Angeles with the sister of the Italian mother’s former husband, and father of the first of her children. Finally, we were told by Booker that

Also now involved is John Hemming MP, who has previously helped other foreign parents to win back their children from Britain’s “child protection” system

On John Hemming’s blog (at 7.52 pm on November 29, within a couple of hours of Booker’s piece appearing on the web) entitled

Careful visiting the UK whilst pregnant. They just might take your baby for adoption

the MP linked to the Booker article and wrote that

This story in The Telegraph is a step beyond the normal abuses in the family courts (and court of protection). This was a pregnant mother visiting the UK for a training course lasting only two weeks. It ends up with her baby being taken through a forcible cesarian and then placed for adoption for the usual spurious reasons that are used … The Italian case is one about which more will be heard.

On Monday and again on Tuesday, Hemming blogged suggesting he would raise the case in Parliament.

So who are Christopher Booker and John Hemming?

Booker is a well-known journalist with some unusual views – on asbestos, which he says isn’t dangerous (writing in 2008 in the Guardian on this, George Monbiot called Booker “the patron saint of charlatans”), on creationism (which he seems to support) and on climate change (perhaps you can guess what his views are). Richard Wilson’s blog is fascinating reading for anyone interested in Christopher Booker’s views.

The case of the Italian mother is not Booker’s first about social workers and the family courts. In fact he’s often written about them. In a piece in July 2010 he said

I have never, in all my years as a journalist, felt so frustrated as I do over two deeply disturbing stories of apparent injustice that cry out to be reported

and talked of

one of the greatest scandals in Britain today – the seizing of children by social workers from loving families, on what appears to be the flimsiest and most questionable grounds.

and in another piece dated October 9 2010 he talked of

a most alarming case that I have been reporting here in recent months, involving Coventry’s forcible seizure of a baby

In 2011 both these pieces were criticised by His Honour Judge Bellamy in the Family Division of the High Court in Re L. He said (paras. 187-188 of the judgment):

Mr Booker’s articles contain significant factual errors and omissions. In the first article Mr Booker gives the impression that it was ‘faint bruising’ which prompted the parents to take L to hospital and which gave rise to what he clearly regards as the over-zealous and unjustified actions of social workers working for the same local authority so recently criticised by me in Re X, Y and Z (Children). As he will come to understand when he reads this judgment, it was in fact L’s floppy arm which prompted his parents to take him to hospital. That floppy arm was the result of a spiral fracture of his left humerus. X-rays showed that he also had six metaphyseal fractures. In his first article Mr Booker makes no mention of any of those fractures. It was those fractures which led to the safeguarding measures taken – and in my judgment appropriately taken – by this hospital and by this local authority.

In his second article Mr Booker asserts as fact that in this case ‘the council has depended, in its campaign to seize this baby, on the same controversial paediatrician about whom the judge was so excoriatory’. … I shall refer to that doctor, as I did in Re X, Y and Z (Children), as Dr M. At no time has Dr M had any involvement at all in the case I am now concerned with. Indeed, to the best of my recollection his name has never even been suggested as a possible expert to be used in this case.

The text of Booker’s July 2010 piece has since been changed to refer to a floppy arm rather than bruising; I don’t think the October 2010 piece has been changed.

John Hemming MP is the Liberal Democrat MP for Birmingham Yardley, and a man who’s also shown a close interest in social workers and care proceedings. I’ve written quite a bit about him, and so has Unity at Ministry of Truth.

In 2008 Hemming acted as McKenzie friend to a woman referred to by the High Court as RP, whose child had been taken into care. Even though she was represented by the Official Solicitor, John Hemming was allowed by the court to make submissions on her behalf. As I wrote in 2011, Hemming criticised the involvement of the Official Solicitor, and said the clinical psychologist who assessed RP was “biased”. He also suggested a trainee solicitor has fabricated notes.

In his judgment, the then President of the Family Division of the High Court, Sir Nicholas Wall, rejected Hemming’s allegations against the psychologist (paras. 124-125):

Even more unarguable – indeed it is outrageous – is Mr Hemming’s allegation that HJ was the paid expert of the local authority. She was nothing of the kind. Such an allegation is not only without any evidential foundation of any kind: it is plainly contradicted by the evidence. Mr. Hemming’s allegation that HJ is part of an “evil” system only warrants comment because it comes from a Member of Parliament, and thus from a person in a responsible public position whom one ought to be able to trust only to make serious accusations when they are based on evidence. I am astonished that somebody in Mr. Hemming’s position should have seen fit to put such a disgraceful allegation into the public domain. I reject it unreservedly.

He also rejected the allegation against the trainee solicitor, saying (para. 88)

I find it not only unacceptable but shocking, that a man in Mr Hemming’s position should feel able to make so serious an allegation without any evidence to support it. In my judgment, it is irresponsible and an abuse of his position. Unfortunately, as other aspects of this judgment will make clear, it is not the only part of the case in which Mr Hemming has been willing to scatter unfounded allegations of professional impropriety and malpractice without any evidence to support them.

And summarising his views of John Hemming, he said (paras. 164 and 168)

… the danger of the mother’s approach, reinforced as it has been, in my judgment, by Mr Hemming’s partial and tendentious advice, is that it has been entirely adult focused. Not once in his argument did he mention the welfare of KP. His emphasis, and that of RP was entirely on her rights and the alleged wrongs which had been done to her …

As to Mr. Hemming, my judgment is that his self-imposed role as a critic of the family justice system is gravely damaged, and speaking for myself I will not be persuaded to take seriously any criticism made by him in the future unless it is corroborated by reliable, independent evidence.

In 2011, on April 26, Hemming used Parliamentary Privilege to name a woman involved in child care proceedings who he said had been threatened with prison by a local authority for speaking at a meeting in Parliament which he chaired. At that stage I didn’t name the woman myself when I wrote about what he’d done, mindful of section 97(2) of the Children Act 1989 – although John Hemming, commenting on my blogpost, tried to do so. A few days later on April 30 Christopher Booker wrote about the case, naming the woman who he suggested was fleeing

the babysnatchers

But in August 2011 the President of the Family Division Sir Nicholas Wall (yes, him again) named the woman in court as Vicky Haigh. His published judgment makes clear that the child’s father was not, as Vicky Haigh had alleged by, a paedophile; and (paragraph 12) that

Ms Haigh … is not only unable to accept the judges’ findings but has put into the public domain the false allegations that she has not had justice and that X, contrary to both judges’ findings, has been sexually abused by her father. Those allegations have been posted on the worldwide web and are in the public domain. In addition, the mother has circulated the allegations to the parents of X’s school and to Mr. Tune’s fellow employees at his place of work. All this, of course, has been done illicitly and in breach of orders of the court.

It was for that reason that the court had made an order preventing Ms Haigh from publicising the details of the case. The order was to protect the anonymity of the child. On this blog, I asked 

Can we take at face value Hemming’s implication that he’s only ever been interested in the free speech aspect of this, and not in giving oxygen to the complaints of Vicky Haigh and her supporters about the care case?

Hemming had made a comment here explaining his decision to name Vicky Haigh, as follows:

the point about her name being known publicly is that those people who know here (which is a lot) can then check whether they think the state is at fault or not.

When I pressed him more than once on what he could have meant about enabling people to check whether the state is at fault – except that his naming Vicky Haigh meant people could now search for any “information” about her case on the internet – he never answered. Before we leave the Vicky Haigh case, I must quote paragraph 34 of Sir Nicholas Wall’s judgment, which contains good advice for us all. The emphasis is his:

Any person who embraces one party’s version of events and treats it as the whole truth is making a serious mistake. In most family cases the version given by one side is partial and tendentious; on any view it does not give the other side. The only sensible course is to see what the court says in a judgment on all the evidence. Hence, the rule in English law that a court’s judgment is authoritative, based as it is on all the evidence, is not only sound in law but founded in good sense.

John Hemming made an official complaint against Sir Nicholas Wall in 2008. We know that because Christopher Booker told us so. What he didn’t mention was the outcome of the complaint.

And so, two thousand words in to this blogpost, I return to the case of the Italian mother, now known in the media as the “forced caesarian” case, raised as we know by Christopher Booker and championed by John Hemming, who has tabled an Early Day Motion – number 830 – about it (thanks to David Boothroyd for drawing my attention to it).

I’ll remind you that Christopher Booker’s original report of the case last weekend gave the impression that a pregnant Italian woman whose children were with her mother back in Italy had had something of a panic attack, and as a result was “sectioned”. One day she woke up and was not allowed to see her baby daughter; then she learnt that a High Court judge had given social workers permission to arrange for the child to be delivered by caesarian section. Booker’s piece implied that the surgery was done with the purpose of taking the child. Finally the mother was told she would be escorted back to Italy without her baby.

The Booker version of the case created a storm on Twitter, predictably enough (I’m not sure what stage the storm is now at) and moved Shami Chakrabarti to say

At first blush this is dystopian science-fiction unworthy of a democracy like ours. Forced surgery and separation of mother and infant is the stuff of nightmares.

She was at least sensible enough to qualify her reaction as “at first blush”. Many tweeters were less cautious. Journalists also got in on the act. Here’s Salon.com initially reporting the Booker version uncritically and calling it “the latest violation of women’s rights”. Here’s Slate.com, saying

Don’t travel abroad while pregnant because you could have your baby forcibly removed from your womb. That’s what seems to have happened to an Italian woman who, while pregnant and on a business trip to Britain, had some sort of mental health episode and was forcibly committed. While in the psychiatric hospital, Essex social services obtained a court order to force a C-section on the woman and take the newborn into custody.

And here’s the Guardian, saying

We do not know the full details of the Essex case, but reports suggest that the woman sought help for a panic attack (possibly a result of failing to take medication for a pre-existing mental health condition). She was taken to a psychiatric unit, sectioned under the Mental Health Act and hospitalised for five weeks before being sedated and given a caesarean section without her knowledge, let alone consent. There is no suggestion the caesarean was necessary to protect her health or life, only that it was requested by social services to remove the baby for child protection purposes.

This is the Booker version served with sauce.

At this point, it’s worth taking a few minutes to ask yourself how plausible the Booker version actually sounded. How likely do you think it is that a woman was detained under mental health legislation for five weeks simply because of “something of a panic attack”? How likely was it that social workers wanted to make sure a caesarian section was performed on the woman just so that they could get their hands on her baby, and could either persuade a judge to agree, or fabricate some other reason? How likely was it that doctors would perform that surgery if (as the Guardian said in an embellishment, or spelling out, of the Booker version) there was no suggestion the caesarean was necessary to protect the mother’s health?

Of course we actually knew very little about what happened. But unless you harbour conspiracy theories about judges, the NHS and social workers, you probably think this sort of thing sounds unlikely, and want proper evidence before believing it. You’d be right.

Essex County Council said in a statement on Monday that it was a health trust (presumably an NHS trust) which sought permission from the court to perform a caesarian section because of concerns about risks to mother and child. Essex said the mother was able to see her baby on the day of birth and the following day. Essex say social workers obtained an interim care order from the County Court because the mother was too unwell to care for her child. They say the mother has two other children which she is unable to care for due to orders made by the Italian authorities. They say social workers liaised with the extended family before and after the birth of the baby to establish if anyone  could care for the child. They say the Italian courts have ruled that child should remain in England, and that in October 2013 they got permission from the County Court to place the child for adoption.

Essex’s version clearly contradicted Christopher Booker, who said it was social workers who’d been given permission to arrange for the child to be delivered and that the mother was not allowed to see her baby daughter. Of course Essex’s is only one side of the story, and may well not give the full picture. But given the track record of Christopher Booker and John Hemming, it was right to accept it until it was demonstrated to be wrong. To be fair, at that stage lamentably few people knew their track record.

But since then we’ve also seen His Honour Judge Newton’s County Court judgment in the car and adoption proceedings, dated February 1 2013. From that judgment it seems (para. 4) that the mother has been detained in Italian psychiatric hospitals twice (paras. 5 and 6), and that

the situation when the mother has not taken her medication is that she has had a number of very intrusive paranoid delusions.

All Christopher Booker told us was that she’d had something of a panic attack.

It seems the Italian courts have placed her two other children with their grandmother because the mother is unable to look after them. One of the children has, the judge said (para. 5)

been both traumatised and indeed has been terrorised, not by the mother’s behaviour, but by what it is that she has witnessed and in particular her mother being profoundly unwell.

It also seems that at some point (para. 6) the Italian court restricted the children’s contact with their mother, and (para. 7) in 2012 there were ongoing legal proceedings in Italy in relation to them.

All Christopher Booker told us was that the Italian woman’s other children were with her mother back in Italy. As though the grandmother were just minding them during the mother’s trip to England.

It seems (para. 8) that a District Judge gave permission for social workers to withhold contact between the mother and baby. It seems doctors at one stage wanted the baby placed with the mother in hospital, but HHJ Newton says (para. 8)

I was and remain deeply concerned about that. It might have been in the mother’s interests but I think the mother, today, would understand that it would not have been in P’s interests for that to have occurred.

It seems (paragraph 9) that the mother was escorted back to Italy because she wanted to go there. The judge was critical of doctors for that, because in his view that she was still too mentally ill at that stage, and because her return to Italy reduced the chances of her getting the baby back.

All Christopher Booker told us was that she was told she would be escorted back to Italy without her baby. As though she’d been deported.

From the adoption judgment it does not seem to have been argued that the new baby should be cared for by its grandmother. The judge concluded (para. 20) that no one in the extended family could look after the child. He rejected the claim of the father. His immigration status in Italy is unclear and (para. 1) although he had been visited in Italy by social workers and the child’s guardian ad litem, and although the judge had given him permission to take part in the proceedings, he had not done so.

And now we also have Mr Justice Mostyn’s ruling on the caesarian section application by the NHS trust, together with a note from Mr Justice Mostyn, in which he says

the application to me was not made by the local authority or social workers. Rather, it was an urgent application first made at 16:16 on 23 August 2012 by the NHS Trust, supported by the clear evidence of a consultant obstetrician and the patient’s own treating consultant psychiatrist, seeking a declaration and order that it would be in the medical best interests of this seriously mentally ill and incapacitated patient, who had undergone two previous elective caesarean sections, to have this birth, the due date of which was imminent (she was 39 weeks pregnant), in the same manner.

The patient was represented by the Official Solicitor who instructed a Queen’s Counsel on her behalf. He did not seek an adjournment and did not oppose the application, agreeing that the proposed delivery by caesarean section was in the best interests of the patient herself who risked uterine rupture with a natural vaginal birth. I agreed that the medical evidence was clear and, applying binding authority from the Court of Appeal concerning cases of this nature, as well as the express terms of the Mental Capacity Act 2005, made the orders and declarations that were sought.

The ruling makes it crystal clear that permission for the surgery was sought because psychiatrists said the patient was suffering from psychotic episodes and delusional beliefs (in fact the NHS trust’s barrister said she had a schizophrenic disorder which was psychotic in nature) and because her obstetrician said there was a risk of uterine rupture.

So the key claim that social workers sought this surgery in order to take the child is shown to be false.

The adoption proceedings are ongoing, and will now be heard in the High Court by Sir James Munby, who is Sir Nicholas Wall’s successor as President of the Family Division.

Some people of course were sensible enough to see through the Flat Earth news from the very beginning. Many Tweeters (sorry: you’re too numerous to name individually) urged caution. The family law barrister Lucy Reed wrote an excellent blogpost on Monday. Adam Wagner wrote about it yesterday, and linked to posts by Elisabeth Prochaska and Suspicious Minds. Dr Evan Harris wrote at Liberal Democrat Voice questioning the Booker version. Buzzfeed admirably came out early with a piece declaring the original story wrong (its piece has since been updated to take account of Mostyn J’s ruling).

It’s worth noting that Tom Phillips, the journalist who wrote that Buzzfeed piece, had also written the “Pricehound” story I linked to above about the “29 stages of a Twitterstorm”. That shows two things: first, that an instinct for satire and commitment to truth are related; and second, that it may be new media which best understands, in this viral age, how to tell Flat Earth news from the real thing.

But from far too much of the media we’ve had an entirely one-sided, sensationalist and churnalistic approach to this story. Even now that Mostyn J’s ruling is public, destroying conspiracy theories about the caesarian, I imagine some Twitter users will continue to mine Italian media reports to feed speculation and grind axes about the adoption. They should stop.

We still do not know everything about this case, of course. It may be that the adoption decision was taken too lightly – Lucy Reed in her blogpost wondered whether it can now stand in the light of the Court of Appeal’s judgment in Re B-S (Children) in September, in which Sir James Munby said (para. 30):

We have real concerns, shared by other judges, about the recurrent inadequacy of the analysis and reasoning put forward in support of the case for adoption, both in the materials put before the court by local authorities and guardians and also in too many judgments. This is nothing new. But it is time to call a halt.

Social workers can get things wrong, as can judges – and if they’ve done so in this case, I’ve no doubt we’ll find out when this case gets before Sir James. Even a stopped clock is sometimes right, and it may turn out that somewhere in all this the Bookers and Hemmings, and all the ignorant armchair critics of what’s happened in this case, have stumbled upon a point. But even if they have, that won’t justify Christopher Booker’s Flat Earth story –

‘Operate on this mother so that we can take her baby’

or John Hemming’s claim that 

this has a fair chance of being the worst case of human-rights abuse I’ve ever seen.

To adapt Sir Nicholas Wall’s words, these men’s self-imposed role as critics of the family justice system is surely now damaged beyond repair. Not only social workers and NHS doctors, who’ve been unfairly smeared in all the speculation, but mentally ill people, vulnerable children and the general reading public deserve better than for their Flat Earth news ever again to be uncritically boosted as it has this week.

Confusion abounds about the EU Charter of Fundamental Rights following Mr Justice Mostyn’s recent judgment in R (AB) v Home Secretary (in which he appeared to say the Charter puts into UK law all sorts of new rights British governments had wanted to exclude) and Tuesday’s reaction by the Lord Chancellor Chris Grayling (who, it’s reported, is urgently trying to clarify whether the Charter “applies in the UK”).

So what’s the truth about this Charter? Who’s right? The short answer is that the judge got this mostly wrong, or at least seems to have gone wrong in the most important respects. What Chris Grayling actually said on Tuesday (which was not quite what came across in the media reports) was mostly right. The Charter does apply in the UK, but to a limited extent. Government lawyers will certainly confirm that view.

We face three serious obstacles in making sense of this. First, there’s the inherent difficulty of some of the legal concepts involved. Second, the politics of both the EU and of human rights are ideological fixations in the UK, which means we have to scrutinise carefully anything governments do, and anything an MP says, about the combination. Finally, the complexity of these legal and political issues means that even good, fair and basically accurate media reports about the Charter can give rise to misunderstanding.

Let’s start by being crystal clear what Mostyn J said, and then look at the Charter itself and what was said at the time. The we can turn to Chris Grayling.

Mostyn J was deciding the case (well explained at the UK Human Rights Blog by Rosalind English) of a failed asylum seeker who was challenging his removal to his home country, arguing among other things that British officials had breached his privacy and disclosed his personal data. These privacy breaches were, he argued, breaches of the Charter. Mostyn J said (para. 10 of the judgment) –

When I read this in the skeleton argument on his behalf I was surprised, to say the least, as I was sure that the British government (along with the Polish government) had secured at the negotiations of the Lisbon Treaty an opt-out from the incorporation of the Charter into EU law and thereby via operation of the European Communities Act 1972 directly into our domestic law.

He went on (paragraph 12):

it is absolutely clear that the contracting parties agreed that the Charter did not create one single further justiciable right in our domestic courts. The assertion in the sixth recital of the protocol that no new rights are created seems to me to be a misleading product of political compromise because on any view the Charter enunciates a host of new rights which are not expressly found in the European Convention on Human Rights signed in Rome in 1950.

In the next paragraph (13) he continued:

my view that the effect of the seventh protocol is to prevent any new justiciable rights from being created is not one shared by the Court of Justice of the European Union in Luxembourg

which was a reference to the judgment of the European Court of Justice in R (NS) v Home Secretary (a judgment in two joined cases he called, in I think an unhelpful mix-up, by the name of the Irish applicant, “ME”). His conclusion (paragraph 14) was that

The constitutional significance of this decision can hardly be overstated. The Human Rights Act 1998 incorporated into our domestic law large parts, but by no means all, of the European Convention on Human Rights. Some parts were deliberately missed out by Parliament. The Charter of Fundamental Rights of the European Union contains, I believe, all of those missing parts and a great deal more. Notwithstanding the endeavours of our political representatives at Lisbon it would seem that the much wider Charter of Rights is now part of our domestic law. Moreover, that much wider Charter of Rights would remain part of our domestic law even if the Human Rights Act were repealed.

In summary, then, Mostyn J was saying (1) the NS case shows the UK’s Protocol doesn’t do much, and we don’t have an opt-out; (2) the Charter includes rights not included in the European Convention on Human Rights; and therefore (3) the Charter gives people new rights which they can now raise in UK courts. He’s not wrong on points (1) and (2). There should be no real surprise about the first, because back in 2009 the Labour government never claimed they’d negotiated an “opt-out”. It’s at step (3) that he goes astray. The Charter does not have the legal effects the judge seems to think.

So let’s look at the Charter and, first, the EU law provisions which govern it.

Article 6.1 of the Treaty on European Union says that the Charter

shall have the same legal value as the Treaties.

which means that the Charter has legal effect (as the Treaty on European Union and the Treaty on the Functioning of the European Union themselves do) and is legally binding on the UK (as the Treaties are). There has been no possibly dispute about this since the Lisbon Treaty.

In passing it’s worth also noticing the final sentence of article 6.1, which says something technically important about how it must be interpreted:

The rights, freedoms and principles in the Charter shall be interpreted in accordance with the general provisions in Title VII of the Charter governing its interpretation and application and with due regard to the explanations referred to in the Charter, that set out the sources of those provisions.

Turning to the Charter itself, these key technical “provisions in Title VII” are found in article 51 and 51. Article 51.1 says

The provisions of this Charter are addressed to the institutions, bodies, offices and agencies of the Union … and to the Member States only when they are implementing Union law.

This is important because it limits the reach of the Charter in UK law. It does apply here, but only when a court is dealing with a matter involving EU law. That does cover quite a lot of things. As new EU laws are made, a gradually increasing number of things come within the scope of EU law, and it’s true that the European Court of Justice tends to take a wide view of its scope. But the Charter does not extend to the whole of our domestic law.

For example, take the issue of “gay marriage” for same-sex couples, which has been legislated for in England and Wales and is currently being legislated for in Scotland. The EU has no competence or power over marriage, so marriage law in the UK does not “implement EU law”. Not does any registrar when marrying anyone, or any court when considering an ordinary divorce petition.

EU rules do come into play in some situations. For instance the EU Citizens’ Free Movement Directive, 2004/38) almost certainly means that just as a Dutchman’s wife has a right to come to the UK with him, a Dutch woman’s wife may come here with her; and soon the spouses of lesbian and gay UK citizens will benefit from the same free movement rights. EU rules may be relevant in cross-border divorce cases. But most marriages and divorces in the UK do not involve EU law. They’re “wholly internal situations” not involving the implementation of EU law. The EU Charter does not touch them.

But what about situations which do involve EU law, and which the Charter does touch? Article 52.3 is important in those situations. It says:

In so far as this Charter contains rights which correspond to rights guaranteed by the Convention for the Protection of Human Rights and Fundamental Freedoms, the meaning and scope of those rights shall be the same as those laid down by the said Convention.

This means the Charter can’t be used to expand rights Britain has signed up to in the European Convention on Human Rights. For example all our marriage laws must comply with the right to marry and found a family, which has been in the ECHR as article 12 since we signed it in the 1950s. The same right is now also set out in article 9 of the EU Charter. But article 52.3 “ties back” the Charter right to marry to its ECHR original. It has the same meaning and scope as the ECHR right. So even in a case involving EU law, in which the Charter technically applies, it offers litigants no more than the Human Rights Act does anyway.

True, the final sentence of article 52.3 says

This … shall not prevent Union law providing more extensive protection.

But that doesn’t just erase the words that went before it, with the result that the Charter can mean anything. This sentence simply means that the EU can if it wants legislate specifically to give people rights not required by the ECHR. The EU (and the EC before it, and even the EEC way back when) has always been able to do that.

Incidentally, the Charter isn’t just about rights drawn from the ECHR (which is why Mostyn J was right to say it goes much further). The additional stuff in it is mainly drawn from the law of the EU itself. Two examples are the article 15.2 right to work across borders –

Every citizen of the Union has the freedom to seek employment, to work, to exercise the right of establishment and to provide services in any Member State.

and the article 23 right to equality between men and women:

Equality between women and men must be ensured in all areas, including employment, work and pay.

Of course these rights have applied in the UK since we joined the EU. And they too are “tied back” to existing EU law by article 52.2 of the Charter. The Charter offers nothing new.

It’s clear from all this that the Charter does technically apply in the UK to an extent: it must be complied with whenever EU law comes into play here. It’s also true that it contains lots of things not mentioned in the ECHR. But the Charter has no bite of its own that would actually make a difference in any case. If it’s breached, that’s only because human rights law was breached anyway, or because some specific EU rule was breached anyway. The Charter’s a bit like a rule saying you have to comply with gravity. You’re already subject to gravity.

And by the way, I haven’t even mention the “explanations” which are a further interpretative device to keep the Charter tame.

So what about the UK’s so-called “opt out”?

In spite of the practical non-effect of the Charter, the last government was so afraid of Eurosceptic opinion that it felt compelled to negotiate a special Protocol – Protocol 30 (which you can see by scrolling down this linked document a little) – to “clarify” the Charter’s effect in the UK. It makes some specific provision about social rights (which  for relative simplicity’s sake I wont go into), but the key provision is article 1:

The Charter does not extend the ability of the Court of Justice of the European Union, or any court or tribunal of Poland or of the United Kingdom, to find that the laws, regulations or administrative provisions, practices or action of Poland or of the United Kingdom are inconsistent with the fundamental rights, freedoms and principles that it reaffirms.

Notice the word extend. The European Court of Justice has always been able to find that UK laws are inconsistent with fundamental EU rights, and it’s been clear since long before the Charter was dreamt up that the Court could also find UK laws inconsistent with human rights in a situation governed by EU law. Nothing in the Charter extends that power. There’s nothing new.

When the last government wrote to the European Scrutiny Committee explaining this, it made clear that the Protocol was no opt out. It said (see paragraph 57 of the Committee’s report)

The UK-specific Protocol which the Government secured is not an ‘opt-out’ from the Charter. Rather, the Protocol clarifies the effect the Charter will have in the UK. The UK Protocol confirms that nothing in the Charter extends the ability of any court to strike down UK law … The Protocol confirms that since the Charter creates no rights, or circumstances in which those rights can be relied on before the courts, it does not change the status quo.

Mr Justice Mostyn was wrong, then, to recall ministers proclaiming an “opt out”. They never did. The Protocol always was just a “clarification” obtained for defensive domestic political reasons. I wrote about the Committee’s report at the time:

Where the committee is also right is in its doubts about the significance of the UK’s new protocol on the Charter of Fundamental Rights (para. 60). Now, there is very little in life about which more rubbish has been said and wrote than this Charter. Even in the benighted world of Europhile-Eurosceptic debates, where honest men and women are scarcely seen, nothing rivals discussion of this for pure mystification, confusion and darkness. And the trouble is that both sides are so anxious to outmanoeuvre each other that they counter non-arguments with non-measures, like this protocol. The truth is that although the Treaty will make the Charter legally binding, what it will bind the UK to do is almost entirely stuff it’s bound to do already. In substance, the Charter adds almost nothing to EU law. But because the government’s scared of Eurosceptic scaremongering about it, it’s prepared to infuriate other governments – and the unions – by insisting on an almost meaningless protocol, which is emphatically not an opt-out, and adds very little if any further protection.

It’s like Andy Murray reaching for a second racket with no strings – “look how brilliant my return will be now!” – when his opponent is serving with a shuttlecock anyway.

The Protocol always was a fig-leaf (at least as concerns rights other than social and employment rights), so it’s no surprise that, in the NS case, the European Court of Justice found that the Protocol did not affect its judgment. The shield is indeed vanishingly thin. But it does not follow that the sword is new or sharp. It’s neither.

What about Chris Grayling, then? What he didn’t say in the House of Commons was that the Charter “does not apply in the UK”. Interestingly, the government tried that argument at one stage in a British court in the NS case, and apparently succeeded! But it rightly abandoned the point when the case was appealed (see paragraph 7 of the Court of Appeal’s judgment). The point is not arguable, and Chris Grayling is not asking government lawyers to confirm it.

What he did say is this:

The judge’s view was that the Luxembourg court had, in the case of NS, held that the charter could create new rights that apply in the UK. It is important to be very clear to the House: we do not agree with that analysis of the NS case. We intend to find another case—we cannot do it with this one as the Home Office was successful and we cannot appeal a case we have won—at the earliest opportunity to clarify beyond doubt the legal effects of the charter and to put the record straight.

It is no secret in this House that I would not personally have chosen to sign up to the Lisbon treaty or to the charter of fundamental rights. However, it is also important to say that the charter’s effects are limited to EU law within the UK, and I have not seen any evidence that it goes beyond that. I would be very concerned if there was any suggestion that the charter did in fact create new rights.

Later he went on:

I think it is of fundamental importance that the impact of the charter in the United Kingdom is limited. We were made various promises about even that degree of involvement over the years, but we were not in power at that time. It is absolutely essential that it is limited in scope in the UK. I would treat it as a matter of the utmost seriousness if it were to emerge in law that that was no longer the case and that the charter was more broadly applicable than that.

So Grayling did not claim the Charter did not apply. What he said, rightly, was that the Charter’s effect is limited to EU law situations. It’s as sure as anything can be that government lawyers will confirm that.

Grayling was also right to correct Labour’s spokesman Sadiq Khan for making the same mistake as Mostyn J and claiming that Labour had negotiated an opt-out. It never did, and never claimed to. Jack Straw was another one who made the very same mistake in the Commons debate. Political memories should not be as short as judicial ones on a matter like this.

Where Grayling seems to misunderstand the position is in his suggestion that it’s the Protocol that limits the scope of the Charter. It’s not. Aside from the special rule applying to social rights (which I’ve not covered in this post) the Charter’s limited effect is entirely the result of Article 6 of the Treaty on European Union, which I discussed earlier, and the Charter itself.

He also unfairly accused Labour of having said the Charter had no legal effect at all. While it’s quite true Keith Vaz  said, as the Telegraph quoted him in 2000, that the new Charter

would have no greater legal standing before EU judges than a copy of the Beano or the Sun

he was talking about the Charter as it existed before negotiations on the Lisbon Treaty or even the draft EU Constitution. It was those negotiations, which had not begun in 2001, which brought on to the table the question of making the Charter legally binding.

Unfortunately though, Keith Vaz seems to think the current Charter still has no legal effect. How it is that judges and MPs all seem confused by this, I have no idea. It is all quite complex, yes. But they of all people ought to be able to follow it.

Complacency about the EU Charter would not be right. The European Court of Justice does make some strange rulings, on occasions seeming to overlook or ignore the actual text of agreed European laws. So there is some danger from judicial activism in Luxembourg. But it’s not right either for politicians or judges to sow confusion about what either the Charter or the Protocol says, or to exaggerate the effects of either.

How Mr Justice Mostyn came to say what he did in this case is a mystery, since his decision that the applicant was (see paragraph 63 of the judgment) a

manipulative, unscrupulous and deceitful person

really meant he had no need to address human rights law at all, never mind the Charter – which was an obvious makeweight point thrown in by his lawyers for good measure, and which was never going to play a real role in the case.

The hearing resumed in Court 4 today, to allow more room for the media and public – fewer of whom turned up for the second day, naturally.

David Miranda’s lawyers continued his judicial review challenge to his detention by police in August at Heathrow under Schedule 7 of the Terrorism Act 2000, and the seizure of his data. He relies on three arguments: that the stop was not carried out for the correct legal purpose; that it breached his and others’ freedom of expression; and that Schedule 7 is incompatible in principle with that freedom.

Again today both sides made arguments about whose purpose is legally relevant, when deciding whether the Schedule 7 stop carried out on Miranda was done for the proper legal purpose. There was more argument today, though, on what sorts of purposes are and are not within Schedule 7.

Steven Kovats QC, for the Home Secretary, began by explaining the “firewall” that had been set up following the CC case between one police officer (a Detective Superintendent from the counter-terrorist SO15) who had knowledge of the national security intelligence and others (an acting Detective Inspector and two constables) who did not. It was the purpose in the minds of the constables (who were in fact the examining officers under Schedule 7), Steven Kovats again argued, and their purpose only, which was the legally relevant purpose as far as the court was concerned.

Jason Beer QC, for the police, argued that Matther Ryder had set up a false dichotomy yesterday between (one the one hand) the purpose of determining whether David Miranda was concerned in terrorism and (on the other) getting hold of the data he was carrying. Schedule 7 can be properly be used in order to seize documents, he argued – and in this case, it was precisely the fact that Miranda was thought to be carrying data that gave rise to the need to examine his involvement in terrorism. Beer relied on a report from David Anderson QC, the independent reviewer of terrorism legislation, who had said seizing mobiles phones, for instance, was an important purpose of Schedule 7. Examining data was essential in order to determine whether someone appeared to be concerned in terrorism, since the data might show his intentions. He mentioned Julian Assange, suggesting that the data someone was carrying might show he intended to publish sensitive material indiscriminately.

The key to identifying the dominant purpose of the stop, Jason Beer argued, was not the actual questions asked. The police would have asked David Miranda about the data he’d been carrying, had they had time; but encryption, and the desire not to reveal their intelligence about the data, limited their ability to do so.

On the question whether the stop was improper or disproportionate because it effectively bypassed alternative legal regimes offering journalists more protection, Jason Beer echoed the submission made yesterday by Steven Kovats.  The police, he said, could not simply have chosen to use powers in Schedule 5 of the Act, instead of Schedule 7. For one thing, the police didn’t know whether Miranda had any of the sort of material to which a Schedule 5 production order application had to relate. There would have been no enforcement mechanism even if they had got such an order – except contempt of court proceedings. Nor could they have compelled Miranda to answer questions: an explanation order under Schedule 5 is only available, he argued, in respect of material already handed over under a production order. His implication was that there was no time for any of this.

Matthew Ryder countered later by arguing that officers could use reasonable force under section 114 of the 2000 Act (although not to ask questions as Lord Justice Laws pointed out). Ryder contended that Schedule 5 should be used first, with Schedule 7 as a last resort in the event of non-compliance. 

Again today, an important issue was how we must interpret the definition of terrorism in section 1 of the Act. Steven Kovats resisted Matthew Ryder’s contention that you had to read into the definition some sort of mental element – intent or perhaps at least recklessness. To do that, he said, would

knock the whole Act out or kilter.

The definition of terrorism is necessarily wide, he argued, because of terrorism’s changing nature.

Indeed it was so wide in his view that simply possessing the raw Snowden data was terrorism, because there was a risk someone ill-intentioned might take it from you – regardless of your own intentions. This was a truly breathtaking submission:  I wonder how it applies to the examining offers themselves who detained David Miranda’s data. Why don’t they count as terrorists, on this approach, if the reasonableness of their intentions (law enforcement or protecting national security, in their case) is irrelevant? But Jason Beer for the police agreed with the submission, saying terrorism was terrorism regardless of motive; and that to imply into the Act any requirement for intent would have unworkable consequences.

Beer also argued that it’d be odd if  the offence under section 58 of the Act required no mental element yet Schedule 7 did. In response later Matthew Ryder said section 56 was far too broad unless the concept of being concerned involved some element of intent.

The judges seemed to agree with the defendants on the width of the definition; Ryder seemed to get nowhere when he argued that it was unworkable not to read in a mental element and that (contrary to what Laws had said earlier) it was the lack of one that would make a criminal case impossible to sum up to a jury.

Interestingly, Matthew Ryder returned to the argument he’d made yesterday about the need for a danger to life to be direct, in order for the definition of terrorism to be satisfied. I wrote yesterday that I thought this argument had some substance, giving an example; and Matthew Ryder had his own examples to deploy today.

Firefighters threatening to strike, he said, would endanger life, would want to influence government and would be taking political action. Were they terrorists? Or if government had a secret plan to keep us all safe by installing cameras in every home, an investigative journalist revealing the plan might risk lives (remotely at least) in an attempt to have political influence. There was no chance for the defendants to respond to these submissions, which I thought some of the most interesting of the day. These points will survive as an indictment of the width of the definition, if Matthew Ryder loses the argument on law.

On what basis is needed to justify a stop, Jason Beer said that to require any sort of basis was to put the cart before the horse. Schedule 7 existed precisely in order to find out if terrorism had occurred and whether the person stopped was concerned in it.

The fact that the police had required more in the way of justification that they’d initially been given, Beer said, showed that their ultimate purpose was sound. Matthew Ryder used the same fact to argue the opposite. The police had known the initial national security case was legal inadequate, he said – and the beefed-up justification added subsequently did not give enough extra detail to make a difference to the dominant purpose.

Matthew Ryder, returning to his argument about the need for compelling evidence to justify a stop, said wild hypothetical theories about what might happen were not enough. The authorities needed to have carried out some assessment of the real risk – and the extent of the risk depended on who they were dealing with. This led him to his point that the risk must be low in the case of someone engaged in responsible journalism.

Laws LJ said at one point that

I’m not sure I know the meaning of the phrase “responsible journalism”.

To say a journalist was responsible did not mean he became omniscient in intelligence matters, he said. The phrase was

just rhetoric, really.

Laws LJ came back to this theme more than once. A responsible journalist can’t arrogate to himself responsibility for national security, he said: no one has appointed or elected him. And he didn’t see how a journalist could make a judgment on what was safe to publish.

When Matthew Ryder drew his attention to Glenn Greenwald’s statement describing how responsible his approach to journalism is, Laws responded that this was just assertion.

This is saying “have faith!”.

In the spikiest bit of advocacy I heard in this case, Matthew Ryder said that

Like judges, journalists have a role

in democratic society. Everyone’s on the same side, he argued, trying to fulfil his or her own part. Just as responsible journalism give a degree of deference to authority and will be careful, it too is entitled to deference, from state authorities and, he implied, from the courts. Some balancing was needed of state rights as against the rights of responsible journalists. Always to take the government view was

not how we work in this country.

Mr Justice Ouseley’s final question brought into the courtroom the question of the Guardian‘s conduct (whose freedom of expression was also breached by the stop, Matthew Ryder had argued earlier in the day). The Guardian, he said, had “circumvented” an agreement to destroy the leaked Snowden material by sharing it with others overseas. How did that equate to the responsible journalism Matthew Ryder was inviting us to have faith in?

There was nothing, Ryder replied, to suggest that anything other than the highest standards had been applied by the Guardian.

I enjoyed all the advocacy. Steven Kovats’s style was direct, effective and non-nonsense, Jason Beer’s precise and studied, while Matthew Ryder became more passionate in his defence of responsible journalism as this afternoon went on. He had the toughest task over these two days, and succeeded in keeping important arguments alive, with new points to support them, even after they’d been forcefully contested by his opponents and questioned from the bench.

I doubt he’s won this case, though.

At the start of today’s judicial review hearing, Court 28 was packed: journalists, a few members of the public and even some of the lawyers had to grab whatever kind of seat they could. I just about managed to wedge myself in between the Bar and the BBC.

David Miranda is challenging his questioning and detention by police at Heathrow airport last August under Schedule 7 of the Terrorism Act 2000, and the seizure of data he was carrying. His case rest on three arguments: that the stop was not carried out for the proper lawful purpose; that it breached freedom of journalistic expression; and that Schedule 7 is itself incompatible in principle with free speech.

Matthew Ryder QC, for Miranda, began the day by telling the court (Lord Justice Laws, Mr Justice Ouseley and Mr Justice Openshaw) that, since a statement from the former Guardian journalist Glenn Greenwald had been put in evidence, there was no longer a dispute that some at least of the material taken from David Miranda was journalistic in nature. Steven Kovats QC, for the Home Secretary, made clear his position that he didn’t admit but neither did he any longer deny that some of the “Miranda material” was journalistic. He would, though, continue to argue that raw documents leaked to journalists by Edward Snowden were not in themselves journalistic.

How one defines “journalistic material” was a point the judges pressed both counsel on. Steven Kovats admitted he’d meant that phrase only in its natural, informal sense. But later in the hearing Matthew Ryder tried to persuade the judges that the key was the definition in section 13 of the Police and Criminal Evidence Act 1984, which he argued covered the “Miranda material” whether in David Miranda’s, Glenn Greenwald’s or even Edward Snowden’s hands.

Lord Justice Laws seemed to be leaning towards the Home Secretary’s view on this: he couldn’t see that “raw” intelligence documents became journalistic in nature simply because a journalist has possession of them. In response, Matthew Ryder QC pointed out that Glenn Greenwald, in his statement, explained that much of the material was not raw but organised and filtered by journalists for journalistic use.

Matthew Ryder made two submissions about the meaning of “terrorism” under section 1 of the 2000 Act. Together they amounted to saying that whatever terrorism does include, it can’t include responsible journalism.

First, he argued that it does not cover every action that endangers life. To be a terrorist you had, he said, to intend to endanger life or at least be reckless about it (although later he seemed to withdraw this, telling the judges by mentioning recklessness he’d perhaps conceded too much). Responsible journalism was not reckless about the risks it caused, he argued, and intended no threat to life. Openshaw J pushed back against this: section 1 creates no criminal offence, he said, so it was unhelpful to import into it concepts from criminal law such as intent. Laws LJ seemed less resistant to the argument that terrorism might need to be defined narrowly (the legal definition covering a narrower range of behaviour than it seems to, literally); he suggested section 3 of the Human Rights Act might compel a narrow reading. That’s a point that neither side has raised, and I’ll be interested if it emerges as important tomorrow.

Ryder’s second submission was that actions or threats are only caught if they directly or substantially endanger life. A responsible publication could be said to endanger life in a remote, hypothetical way by reducing national security capability at the margins, but such remote, abstract dangers were not covered. Laws LJ was not impressed by this argument: he said it was going nowhere, and that

there are better points in the case.

I thought this was a little hasty, and that the argument has some substance. Many activities increase risk to someone’s life in an indirect or remote way. An example might be reinstating a surgeon dismissed for poor performance. We wouldn’t dream of calling it terrorism if a politically motivated group were to lobby health ministers on his behalf.

Several times during the day the judges raised the question of exactly whose purpose needed to be considered when deciding whether the stop was carried our for the proper purpose – deciding whether Miranda was a terrorist – laid down in Schedule 7. Matthew Ryder for David Miranda argued that it was the purpose in the minds of the examining officers – the police officers who actually stopped and questioned his client – that counted.

The trouble was, he said, that there had been a two-stage process in which a Detective Superintendent, in dialogue with the Security Service, had authorised the stop. There was an intelligence “firewall” between him and the examining officers who actually questioned Miranda on his instruction. They did not have access to intelligence about what David Miranda might be carrying.

The result, argued Ryder, was that the examining officers were unable to conduct the Schedule 7 stop meaningfully as an independent exercise. In truth, they were influenced and guided by the Detective Superintendent whose purpose was itself tainted by the Security Service’s real aim, which was to recover whatever documents Miranda was carrying. He was the one who decided that the “Miranda material” should be detained.

Steven Kovats for the Home Secretary argued that it was the examining officers’ purpose alone which counted, and that this could be the correct statutory purpose even if the stop was done at the request of MI5.

I felt neither counsel seemed to be persuading Laws LJ on this point. He expressed the view (more than once) that what mattered under Schedule 7 was not the subjective purpose in any individual mind, but what the purpose of the stop was, objectively speaking. He saw written communications between MI5 and the police, specifically the “Port Circulation Sheet” and national security justification contained in it, as the best evidence of this. This approach differs from that taken by the parties so far (we’ve yet to hear Jason Beer QC for the police) and could lead to a finding for either, depending on what Laws thinks the dominant objective purpose was.

There was little argument on which sorts of purposes did and which did not fall within Schedule 7: but we should hear that tomorrow.

Finally, a fair part of today was taken up by the argument – relevant both to the “improper purpose” complaint and the proportionality of the interference with free expression – that the use of Schedule 7 conveniently bypassed the parallel regime under Schedule 5 which a judge to authorise police access to journalistic material. On this, the going was very tough for Matthew Ryder. He made the argument as strongly as it could have been made, I thought, but there was no sense that any of the judges was attracted to it. From what I saw today, they seem likely to agree with Steven Kovats that the two regimes are not parallel at all.

Overall, I think the defendants will be a bit happier with the day than David Miranda’s side. Matthew Ryder seemed to make less headway with the judges than he might have liked. But there’s a lot to play for tomorrow – especially on the crucial issues of purpose and how widely terrorism is defined.