Following today’s short hearing of the injunction application adjourned from last week, David Miranda’s solicitor Gwendolen Morgan again gave a brief statement to what was a much smaller media pack. She explained the “pragmatic view” her client took by agreeing to let the injunction continue pending the substantive judicial review in a few weeks.

Clearly David Miranda and his lawyers concluded it would be hard for them to maintain the existing order if they went ahead with a contested application today, given the government evidence that’s been filed and which Gwendolen Morgan refers to. You’ll see from my previous post that I think the government’s likely to be pleased with the varied order.

Today’s was a much shorter hearing than last week’s. I was expecting full argument about whether the short-term interim injunction granted last week should be continued until the hearing of the full judicial review, probably in October, and if so whether its terms should be varied. But in fact the hearing lasted no more than about 15 minutes.

Matthew Ryder QC, for David Miranda, opened by explaining to Lord Justice Laws and Mr Justice Kenneth Parker that the parties had agreed that the injunction should continue, on the same terms: it should permit the defendants to inspect the detained material for the purpose of investigating offences under section 58 and section 58A of the Terrorism Act 2000, and offences under the Official Secrets Acts 1911 and 1989.

Laws LJ commended the parties for reaching agreement, and the court made the order in those terms.

So until the judicial review or further order (all the parties are free to apply to the court for the order to be varied) the government and the police may not inspect, copy, disclose, transfer, distribute (whether domestically within the UK or to any foreign government or agency) or otherwise interfere with the material obtained from David Miranda under Schedule 7 of the Terrorism Act 2000, except:

• for the purposes of investigating whether David Miranda is or has been concerned in the commission, preparation or instigation of acts of terrorism.
• for the purposes of investigating whether he has committed offences under section 58 and section 58A of the Terrorism Act 2000, and offences under the Official Secrets Acts 1911 and 1989,* and
• for the purposes of protecting national security, including protecting lives and preventing the diminution of the UK’s national security capability.

Interestingly, Steven Kovats QC for the Home Secretary said there’d been no decision yet whether to apply for these to be closed material proceedings under the Justice and Security Act 2013.

Any potential interveners in the case (Liberty and PEN were mentioned in court; outside court later David Miranda’s solicitor also mentioned the National Union of Journalists) have till September the 5th to apply.

Again, the government and the police must be pleased with this consent order. They’ve not only maintained the ability to inspect the material for national security purposes, but can now use it for criminal investigations, which they’ve been restrained from doing for the past week.

*I’ve amended this to make clear my understanding
that the additional saving only permits investigation
of offences by David Miranda: no one else.
See comments below.

This hearing was the resumption of the adjourned hearing from last week, and was due to involve fuller argument on what if any interim injunction should apply pending the hearing of the full judicial review. In fact as you’ll see, it turned out to be a short hearing as the parties had agreed a varied order.

http://storify.com/carlgardner/r-miranda-v-home-secretary-hearing-of-30-august-20

In some ways this week, with the recall of Parliament and the UK’s tabling a UN resolution, seems like a fast replay of the run up to the 2003 invasion of Iraq. Many people’s attitudes to what’s happening are informed by the experience of Iraq, and reflect the view they took of that action ten years ago. Mine too.

So it may be no surprise that, although my legal argument is different here from that in the case of Iraq, and involves undoubted legal controversy, I think there is a proper legal basis on which the UK can participate in military action against Syria.

Let me make clear, first, that this post does not reflect a settled view on my part that action should be taken. I admit to being a natural “liberal interventionist”, and may well support US-led action against Syria. But I’ve not fully made my mind up yet. And second, let me make it clear that I don’t think it’s enough for action to be “illegal but legitimate”, as the Independent International Commission on Kosovo found in relation to Western intervention over Kosovo. In my view legality is an important aspect of morality in international affairs. I would oppose action against Syria, however morally legitimate it might be, if I thought it breached international law.

In one sense (however controversial and contested it was) the legal case for the invasion of Iraq was simple: the argument was that the action was authorised by the UN Security Council in resolutions passed at the end of the first Gulf war, an authorisation that was “revived” by subsequent development and in particular Security Council Resolution 1441.

Here, the legal position is likely to be very different. Russia and perhaps China are almost certain to veto the UK’s draft resolution authorising force against Syria, for their own political reasons. Indeed they have already vetoed non-military sanctions against Syria earlier in the crisis. It’s worth noting that it’s this sort of stance taken by Russia and China that make it difficult for lawyers to agree that force can be lawful only when explicitly authorised by the UN Security Council or the UN Charter. That approach to the law would make sense if all five veto-holding permanent members of the UNSC reliably acted in pursuit of the purposes of the UN, the main one of which according to article 1.1 of the UN Charter, is

to take effective collective measures for the prevention and removal of threats to the peace, and for the suppression of acts of aggression or other breaches of the peace

and if they used the primary responsibility for maintaining security conferred on the Council by article 24 of the Charter

In order to ensure prompt and effective action by the United Nations … .

In my view one cannot sensibly approach international law in this area, or the application of the UN Charter, without recognising that if, the Security Council fails to live up to its responsibility to take prompt and effective collective measures for the prevention of threats to peace, that must make some difference to the position in international law. To think otherwise would undermine the whole purpose of the UN.

In any event, in reality authorisation for action against Syria is unlikely to come from the Security Council. I look forward to the day a democratic Russia and China take their places at the UN, when identifying and respecting the rule of international law will be a much simpler business.

So a question arises which never arose in the case of Iraq, and which was not settled by the International Court of Justice in the case of Kosovo. Can force be lawful without UN authorisation? In this case the one explicit exception, self defence under article 51 of the UN Charter, does not apply (though that would change, were Syria to attack one of its neighbours, for instance the NATO member Turkey, in the coming days).

The only possible legal basis for action otherwise is the doctrine or emerging norm of the “responsibility to protect”. This is expressed most clearly in the Outcome Document of the 2005 World Summit, at paragraph 139:

The international community, through the United Nations, also has the responsibility to use appropriate diplomatic, humanitarian and other peaceful means, in accordance with Chapters VI and VIII of the Charter, to help protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity. In this context, we are prepared to take collective action, in a timely and decisive manner, through the Security Council, in accordance with the Charter, including Chapter VII, on a case-by-case basis and in cooperation with relevant regional organizations as appropriate, should peaceful means be inadequate and national authorities manifestly fail to protect their populations from genocide, war crimes, ethnic cleansing and crimes against humanity.

Admittedly, this speaks of action in accordance with the UN Charter and through the Security Council. This is a point well made by Dapo Akande at EJIL: Talk! and in a letter to the Guardian by Brian Barder. But I don’t think that’s the end of the matter.

In his 2009 report, Implementing the Responsibility to Protect, Ban Ki-moon put the responsibility to protect in its international law context (para 3):

It should be underscored that the provisions of paragraphs 138 and 139 of the Summit Outcome are firmly anchored in well-established principles of international law. Under conventional and customary international law, States have obligations to prevent and punish genocide, war crimes and crimes against humanity.

The responsibility to protect is not, then, something that exists in a legal vacuum, and it is not just an optional tool for states to use when it suits them. It really is a responsibility, relating to international law obligations. He also places the doctrine in its historical and moral context. At paragraph 6, recalling “the worst tragedies of the past century”, he says

In retrospect, three factors stand out. First, in each case there were warning signs … Second, the signals of trouble ahead were, time and again, ignored, set aside or minimized by high-level national and international decision makers with competing political agendas. Third, at times the United Nations — its intergovernmental organs and its Secretariat — failed to do its part.

All those factors, it may be noted, apply in the case of Syria. True, under paragraph 11(c), Ban Ki-moon reiterates that

In accordance with the Charter, measures under Chapter VII must be authorized by the Security Council.

But notice also what he says at paragraph 61:

Within the Security Council, the five permanent members bear particular responsibility because of the privileges of tenure and the veto power they have been granted under the Charter. I would urge them to refrain from employing or threatening to employ the veto in situations of manifest failure to meet obligations relating to the responsibility to protect, as defined in paragraph 139 of the Summit Outcome, and to reach a mutual understanding to that effect.

There’s no doubt that the use of chemical weapons is prohibited in international law. And using them in a non-international armed conflict (as appears to have happened in Syria) is a war crime under article 8.2(e)(xiv) of the Rome Statute of the International Criminal Court. There can be little doubt that Syria has manifestly failed to protect its population from that war crime.

So the legal question is this: if the conditions exist that would justify the Security Council’s authorisation of coercive measures under the UN Charter, and if the UN itself is, again, failing to live up to its responsibilities because one or more of them wishes to do exactly what the Secretary General in 2009 urged them not to do, is it lawful for states to band together to use force to protect civilians? Or does the rule of international law forbid this?

In my view the answer must be that any multilateral action that could be authorised by the Security Council must be lawful in those circumstances. Otherwise, international law would be the prisoner of a broken Security Council, and the UN Charter and its ideal of collective global security would be a joke. The purpose of the Charter is not simply to prevent the use of force in all circumstances.

The 2001 report of the International Commission on Intervention and State Sovereignty (ICISS), The Responsibility to Protect, addressed explicitly what should happen if the UNSC fails to act. At paragraph 6.28 it says:

In view of the Council’s past inability or unwillingness to fulfill the role expected of it, if the Security Council expressly rejects a proposal for intervention where humanitarian or human rights issues are significantly at stake, or the Council fails to deal with such a proposal within a reasonable time, it is difficult to argue that alternative means of discharging the responsibility to protect can be entirely discounted.

and at paragraph 6.37 in consider what should happen

when the Security Council fails to discharge what this Commission would regard as its responsibility to protect, in a conscience-shocking situation crying out for action. It is a real question in these circumstances where lies the most harm: in the damage to international order if the Security Council is bypassed or in the damage to that order if human beings are slaughtered while the Security Council stands by.

The question remains how collective action by states under this approach can be reconciled with the UN Charter, and whether it amounts to the crime of aggression. Article 2.4 of the UN Charter says that

All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations

but this can’t be taken as an absolute ban on the use of force in all circumstances – or else even the right to self defence would be abolished. Article 2.4 must be read in context, in other words. As James Green has argued, it is not as clear as it first appears that article 2.4 is a peremptory jus cogens rule of international law so fundamental that it overrides all the international law content underlying the responsibility to protect. Natalie Oman has argued that in the light of the responsibility to protect, article 2.4 cannot be interpreted as giving the Security Council a monopoly on all uses of force in all circumstances. I agree.

In my view article 2.4 has to be read as not only permitting self defence and force authorised by the UN Security Council, but collective action by states which is consistent with the purposes of the UN for the purpose of discharging the responsibility to protect – and which is proportionate – where the Security Council has failed to act because of a veto by one or more of its permanent members.

The international crime of aggression is defined by article 8 bis of the Rome Statute as

the planning, preparation, initiation or execution, by a person in a position effectively to exercise control over or to direct the political or military action of a State, of an act of aggression which, by its character, gravity and scale, constitutes a manifest violation of the Charter of the United Nations.

An act of aggression means, under article 8 bis (2), the use of armed force and includes bombardment. But the use of force which could properly be authorised by the UN Security Council to fulfil its responsibility to protect, and which only remains unauthorised because of one or more vetoes, cannot be described as a manifest violation of the UN Charter. It’s nothing of the sort.

There are in my view conditions on the lawful use of force in these circumstances.

First, any action must be taken by a number of states collectively, rather than by one state alone. I say this because the justification for the multilateral use of force is precisely the Security Council’s failure to take effective collective measures, and only collective action can be consistent with the purposes of the UN. Second, there should be clear evidence of war crimes. If I were an MP voting on this, I’d want to see the report of the UN inspectors currently in Syria, or else a convincing explanation of why we should not wait on their conclusions, accompanied by strong alternative evidence. Third, the use of force must be a last resort. Here, I think it is: everything else has certainly failed so far. Fourth, the proposed action must be proportionate – by which I mean it should be whatever’s needed to stop the war crimes, but no more. Fifth, what’s proposed must stand a reasonable prospect of success in changing Syria’s behaviour. All these “precautionary factors” I take from chapter 4 of the ICISS report.

As I think is clear, my view is predicated on the idea that UN authorisation is impossible because of a veto – so I think it’s important that the UK has tabled a draft Security Council resolution which would authorise force. If that’s vetoed, or at the very least not pursued because of a publicly pre-announced veto, then in my view Britain could lawfully take part in the multilateral use of force.

Lawyers are bound to disagree about this, and their disagreement will reflect two views of international law and in particular of the UN Charter. One view is that the main point of the UN Charter is to “stop war”, and that in service of that aim, it must be read as meaning inaction by an unfettered Security Council, for any reason or none, renders unlawful the use of force by states in all circumstances and for all purposes (other than self defence). This has a superficial and perhaps literalist appeal but seems to me either hopelessly naive – so ill-adapted is it to real world conditions – or unpleasantly cynical, since it would give so much blocking power to a single undemocratic superpower, and so much protection to any of its allies that wished to persist in war crimes under cover of a veto. Perhaps it’s both naive and cynical.

The other view may be more purposive but also seems to me more realistic and responsible, and more idealistic too. The real point of the UN and its Charter is and always was for the international community to come together to stop threats to peace and security like that presented by Syria; and the real point of international law prohibiting war crimes is to do something effective to stop them. The Charter should be read, and international law applied, in a way that permits that.

You can never look too closely at legislation.

In the High Court today, before the judgment was handed down, it became clear from the discussions taking place between the lawyers on either side that the Metropolitan Police were not intending to return all of the material seized from David Miranda last Sunday. They’d return some, it seemed, but would retain some, too. It wasn’t clear to me on what basis they could claim to do this.

I’d been assuming – and in fact yesterday’s entire hearing in the High Court seemed to proceed on the assumption – that the “Miranda material” seized last Sunday under Schedule 7 of the Terrorism Act 2000 would have to be returned to David Miranda this weekend – by midnight at the end of Saturday in fact. As I wrote yesterday,

Jonathan Laidlaw QC … argued that stopping inspection now would in effect be “final”, since it must be returned this weekend: there is no power to extend the 7 day examination period under Schedule 7, he said.

But I now realise I hadn’t been looking closely enough at the legislation, or thinking hard enough about it. It’s easily done. Schedule 7 paragraph 11(2) provides that

An examining officer may detain the thing—

(a) for the purpose of examination, for a period not exceeding seven days beginning with the day on which the detention commences,

(b) while he believes that it may be needed for use as evidence in criminal proceedings …

I said in my post yesterday, having looked at it again after the hearing, that this

suggests that in fact, Jonathan Laidlaw QC’s “finality” argument was misconceived, at least if it’s possible for criminal proceedings to be commenced in the next day or so. In any event, today’s order effectively scrubs out the power in paragraph 11(2)(b) as far as this case is concerned.

My thinking was this: for Laidlaw to have made the submission he did, he must have assumed the paragraph 11(2)(b) power was not available. This, presumably, was because there are no criminal proceedings and no current contemplation of their being commenced, for instance by an arrest. In those circumstances, you can’t yet form the “belief” that any of the material may be needed as evidence in any such proceedings, and the mere possibility of the material having evidential value one day is not enough. You might call this a “narrow” approach to paragraph 11(2)(b).

I said that paragraph had been effectively been “scrubbed out” because the police have now been ordered not to inspect the material for the purposes of criminal investigation, at least until next Friday evening; and, as I assumed yesterday (and as Jonathan Laidlaw seemed to be saying), the original material would be returned before that.

But today in court, as I wrote earlier,

Matthew Ryder QC asked for the reference to his apparent concession to be modified because it had he said, “in the heat of advocacy”, been based on a misunderstanding of Jonathan Laidlaw’s “finality” submission. He had understood this to be an argument that the police would have to return all the “Miranda material” this weekend. Apparently in discussions between counsel later, the police side made clear that their position was in fact that inspection of the original material would have to cease then, but that the material itself need not necessarily all be returned by Sunday.

In effect, therefore, it seems that two apparent concessions were withdrawn or clarified today: not just Matthew Ryder’s, but Jonathan Laidlaw’s about “finality”. The “finality” argument was apparently not what it seemed at the time.

Knowing this, and looking at paragraph 11(2)(b) again, I think the police must have decided to rely on a wide approach to the provision. When it says

An examining officer may detain the thing … while he believes that it may be needed for use as evidence in criminal proceedings

applying that wide approach it potentially means that he may do so for as long as he likes, even if he just thinks it’s a remote possibility that – one day – it may be needed as evidence.

To be fair to the police, we don’t know what material they propose to retain, or why, we don’t know what they’ve been able to look at, how much they were able to investigate before yesterday, and how imminent or remote any arrest may be as things stand.

Presumably the police’s legal thinking now is that they have power to detain the “Miranda material” beyond Saturday, even though they are restrained from using it in a criminal investigation, because they believe it may be needed as evidence in a criminal case. If the court decides either next Friday or in its judicial review judgment in October that the seizure was lawful, the police can then again use it for the purposes of criminal investigation.

As I say, you can’t look closely enough at legislation. No doubt the police have been looking at it closely too, and surely David Miranda’s lawyers will be thinking about this as well. I wonder what arguments will be made next Friday on the width of paragraph 11(2)(b).

The corrected form of today’s judgment has now been published on the judiciary’s website, and is available at BAILII. Here it is.

Here’s the uncorrected draft that was handed down to the press and public today. Please note this is subject to editorial corrections – Beatson LJ made clear some stylistic changes would be made, and some repetitions removed, before the judgment is made final.

The one substantive change we can expect following discussion in court will be at the end of paragraph 31, where you’ll see my rough manuscript insertion. Matthew Ryder QC asked for the reference to his apparent concession to be modified because it had he said, “in the heat of advocacy”, been based on a misunderstanding of Jonathan Laidlaw’s “finality” submission. He had understood this to be an argument that the police would have to return all the “Miranda material” this weekend. Apparently in discussions between counsel later, the police side made clear that their position was in fact that inspection of the original material would have to cease then, but that the material itself need not necessarily all be returned by Sunday.

Beatson LJ agreed to mention that the apparent concession was based on Matthew Ryder’s misunderstanding of that concession. Before Matthew Ryder could suggest an alternative form of words, Beatson LJ forestalled any attempt to push him further (to be fair, I’m not sure that was what Ryder was trying to do) by wryly remarking that he’d allow corrections of fact as to what happened yesterday – but no “Monday morning quarterbacking”.

Interestingly, from the discussions that were taking place between lawyers in court today before the judgment was handed down, I understand that the police do not intend to return all the original material at midnight on Saturday. On what basis they claim the power to do this, I don’t know. I understand that some of the material will be returned, and that the police will write to Bindmans solicitors explaining their position in relation to the rest.

After today’s hearing, David Miranda’s solicitor, Gwendolen Morgan of Bindmans solicitors, gave a brief statement to the media. Apologies for the quality of the sound.