The Justice Secretary’s Commons statement on prisoners’ votes today was interesting in more ways than one.

First, he’s chosen to put forward a draft bill for pre-legislative scrutiny – rather than a fully-fledged bill. I’m not sure why that’s necessary: when the government proposed in late 2010 to legislate for prison votes, it seemed to be planning simply to table a bill. The main advantage of pre-legislative scrutiny by a joint committee of both Houses is, of course, that it will prolong the process of compliance with Strasbourg (or not). The government’s playing for yet more time, in other words.

Interestingly, Chris Grayling at one point, in response to a question from James Clappison, rehearsed the government’s arguments in favour of pre-legislative scrutiny – which he said was an established part of the legislative process, which had often been used on controversial matters, and which was appropriate because of the practical complexity of giving prisoners the vote. It’s obvious that the government has thought hard about how to defend its decision to take this slower legislative route.

The government must think publishing a draft bill is enough to satisfy the first requirement in the key “pilot” judgment against the UK, Greens & MT, to

bring forward … legislative proposals

with a view to compliance. You might argue this means actually introducing a bill. But Strasbourg must be desperate to get the outstanding British prison votes cases off its list, since it’s already drowning in cases. Grayling must reckon the Court will accept his arguments that his draft bill complies with the first part of Greens & MT, and go ahead and strike them out.

Second, twice in the debate Grayling referred to possibility that the joint committee could recommend, and the House could choose, to limit prisoners votes in some respects even more than existing law does. This is the “red meat” I was talking about in an earlier post. Currently, British prisoners regain the vote once they leave prison; but strangely (it seems hard to square this with the logic of its judgments against the UK) the European Court recently approved of Italy’s system, which bans many prisoners from voting even beyond the terms of their sentence, and in some cases for life.

Finally, Grayling mentioned “indications” from the European Court that removing the ban for prisoners serving up to six months would be needed in order to comply. I’m not sure where he gets that from; I don’t see this in any of the judgments. So perhaps there’s been an informal dialogue between the government and the Court about these issues that Grayling’s remark only hints at.

Here’s the transcript of Danny Nightingale’s Court Martial earlier this month, which was published on the Judiciary’s website. I’m grateful to John Moss for drawing it to my attention.

Abu Qatada has won his appeal against the Home Secretary Theresa May’s refusal to revoke the fresh deportation order she issued in his case this April, following assurances she’d received from the Jordanian government about his retrial, if and when he arrives there, on terrorist offences.

Here’s today’s judgment from the Special Immigration Appeals Commission.

It’s an interesting judgment, this: in essence SIAC has concluded, based on conflicting opinions from Jordanian legal experts, that there remains a real risk that “torture evidence” – that is, previous statements obtained allegedly by torture from other defendants in previous trials of Abu Qatada – will be relied on at his retrial there.

The risk arises because of a combination of two factors: first, Jordanian law may make the previous statement of a former co-defendant admissible as evidence, as well as live testimony from him (equally, it may not); and second, if the evidence is admissible, Jordanian law may only permit judges to exclude it if Abu Qatada can prove it was actually gained by torture (the Jordanian government says the prosecution would have to prove is was not gained by torture).

In these circumstances, since according to SIAC there is a real risk torture evidence will be used against him, deportation would lead to a flagrant denial of justice and so breach Abu Qatada’s article 6 right to a fair trial – as the European Court of Human Rights ruled in January. In short, therefore, SIAC has ruled that Theresa May did not, after all, obtain assurances from Jordan firm enough to change the underlying factual background, so making the European Court’s ruling inapplicable.

As has been widely reported, the government is seeking permission to appeal. In principle the right to appeal is only on a question of law, under section 7 of the Special Immigration Appeals Commission Act 1997. On the face of it causes a problem for Theresa May: the question whether there is a real risk or torture evidence being used is a question of fact, as is any issue of Jordanian law (since foreign law is a question of fact in English courts).

But I think there’s probably room for the government to frame an appeal in terms of law. One way of doing that familiar to most lawyers would be to argue that no reasonable Commission could have concluded there was a real risk here on the facts: this kind of factual irrationality is a question of law rather than of fact.

I’m not sure the government even needs to go there, though. In reality what’s at stake in this case is at what point a risk of torture evidence being used changes, because of legal assurances and guarantees, from being “real” to less than real. Here, the government could argue that rather than looking at the reality of the risk in the round, SIAC has in effect ruled deportation unlawful because there remains some risk torture evidence may be used; or else that it’s unjustifiably focused on the question of where the burden of proof lies, rather than on the likelihood of the evidence actually being admitted having been obtained by torture.

Either of these arguments can be framed in terms of SIAC’s misapplying the test laid down by the European Court. An appeal by the Home Secretary does seem to me a realistic option, therefore – and I’d be surprised if she doesn’t get permission, if not from SIAC itself, then in due course by the Court of Appeal.

Abu Qatada is on pretty strict bail now – but only pending any appeal. If the Home Secretary is ultimately refused permission to appeal by the Court of Appeal, then her deportation order will fall away – and there would be no legal basis for his further detention. Abu Qatada would then in principle be free, without any conditions. Does Theresa May have any further cards to play?

She does. For one thing, she could consider imposing a Terrorism Prevention and Investigation Measure on him – the new version of what used to be called “control orders” – under the Terrorism Prevention and Investigation Measures Act 2011. A “TPIM” could include restrictions at least roughly analogous to the conditions of Abu Qatada’s current bail.

More important, though, Theresa May can try to change the underlying facts here by obtaining further assurances and legal changes from the Jordanians, making clear that previous statements in case like this cannot be used in evidence unless the relevant witness is unavailable and if the prosecution can satisfy the court it was not obtained by torture or inhuman treatment. If Jordanian law can be changed to make that clear, the facts would again have been changed – and Theresa May could issue yet another deportation order. That would be to start yet again from square one – and the appeal merry-go-round would begin again.

Just as she did between January and April this year, therefore, I expect the Home Secretary to adopt a twin-track strategy, on the one hand trying to persuade the courts to adopt a legal approach which allows them effectively to approve the factual position she’s reached with Jordan; and on the other, to try to persuade Jordan to alter the facts yet further so as to fit the requirements of the courts.

This story isn’t going to end soon.

Earlier I posted Clive Stafford Smith’s response to my piece yesterday about what I called “Reprieve’s dodgy press release”. I said I’d set out my own comments on his response in a separate post – and here they are.

First, Clive says:

The key point you make is that “the Supreme Court did not say the UK was involved in Mr. Rahmatullah’s rendition – indeed the judgment makes clear the British didn’t know about it at the time”. But, as the Divisional Court found, and was common ground throughout the litigation, this is not right. The British knew the US were intending to ship YR off to Afghanistan, before they did it. And the British did nothing about it. See the Divisional Court’s judgment, para. 8:

“In a Parliamentary Written Answer on 6 July 2009 the then Secretary of State for Defence indicated that British officials became aware of the intention to transfer in March 2004, some days after the claimant’s initial capture. They had learned by mid-June that the two individuals had been transferred to Afghanistan.”

This was common ground in the Supreme Court. The Supreme Court were well aware that the British well knew of the US proposal to transfer Mr Rahmatullah to Afghanistan, but did nothing. The press release is accurately based on para. 39 of the judgment:

“39. Not only should the transfer of the two persons have been questioned at the time that they were removed, it should have been the subject of representation by the UK at the time that the authorities here became aware of it and subsequently. If the UK government appreciated that the transfer was in apparent breach of article 49 of GC4 (and it has not been suggested otherwise) and if, as it should have done, it became aware that Mr Rahmatullah continued to be held in breach of articles 132 and 133, it was obliged by virtue of article 45 to take effective measures to correct the breaches or to ask for Mr Rahmatullah’s return.”

The “time the authorities here became aware of it” was before the transfer took place, not afterwards.

This wasn’t actually the key point in my post about the press release: the key point of my criticism was the press release’s suggestion that the Supreme Court had described something the UK had done or failed to do as a war crime. It did no such thing – and I note that Clive Stafford Smith’s response doesn’t address that.

But on the question of what the British knew and exactly when, he does make a reasonable point.

Clive has in the quotation above drawn attention to paragraph 8 of the Divisional Court judgment. Also relevant in this context are a statement John Hutton made in the House of Commons on 26 February 2009, and the written answer given by his successor as defence secretary Bob Ainsworth, on 9 July 2009 which is mentioned by the Divisional Court. John Hutton’s statement says

officials were aware of the transfer in early 2004 … In retrospect, it is clear to me that the transfer to Afghanistan of these two individuals should have been questioned at the time.

This isn’t as clear as anyone would like about exactly when officials knew about the intention to transfer, exactly when the transfer actually happened, and which came first. Nor is Bob Ainsworth’s written answer, in which he says

the available historical records … suggest that British officials became aware of an intention to transfer in March 2004, although this was some days after the initial capture had occurred. British officials had learned by mid-June 2004 that the individuals had been transferred to Afghanistan.

But taken together they imply officials were aware of US intentions at some point shortly after handing Mr. Rahmatullah over, and that this was before he was actually taken to Afghanistan. So I’m happy to accept what Clive says was the common understanding of the parties during the case, that the British authorities knew of the US intention to transfer Mr Rahmatullah to Afghanistan before it happened.

What I said in the middle of this paragraph in my original post –

but the Supreme Court did not say the UK was involved in Mr. Rahmatullah’s rendition – indeed the judgment makes clear the British didn’t know about it at the time – or that the UK may have committed any “war crime” – a phrase not used in the judgment.

was based on what Lord Kerr said at paragraph 4 of the Supreme Court judgment, especially his second sentence –

The UK authorities became aware, about a month after Mr Rahmatullah had been taken into custody, that US forces intended to transfer him out of Iraq. That transfer took place without the UK having been informed of it.

and I suppose you could say it’s defensible to the extent that the British were not involved in the transfer, were not aware of it as it happened, and only found out after the fact that it actually had happened. My point was that the UK didn’t take part in the transfer: it was wrong for Reprieve to talk in its headline about a “UK unlawful rendition”.

But in the light of what Clive’s said, what was said by John Hutton and Bob Ainsworth, and what I’ve accepted about the common understanding of the parties, I think his complaint that it’s “not right” is also fair. I probably have put too much emphasis on Lord Kerr’s second sentence and not enough on the significance of his first. I want to avoid the risk of misleading anyone myself, so I’ll update my original post to reflect this.

What Clive doesn’t suggest is that the British knew before handing Rahmatullah over that the Americans would send him to Afghanistan. Only if that were true would Reprieve’s press release, which talks of

UK unlawful rendition

and

The rendition of a Pakistani man by UK and US forces to Afghanistan

have been accurate.

Back to the rest of Clive Stafford Smith’s response to me, now. He says:

The next point you make is that the MoU was not technically an “extradition” agreement. In the technical legal sense, this is right. But for the purposes of a press release, it makes good sense and is readily understandable by the lay reader. The MoUs are an agreement governing the transfer of prisoners from one jurisdiction to another. And this is the first time in at least 150 years that the US has reneged on an agreement with the UK governing prisoner transfer. The point being made is one that we both share. We agree that (as you put it) “It suggests little respect from the Americans for their commitments, even though not formally binding ones, to the British”.

Clive seems to accept that I’m right on this point – rightness in the technical legal sense being what matters. The MoU wasn’t about extradition, and wasn’t a binding agreement. And he may well be correct to say this is the first time in at least 150 years that the US has reneged on an agreement with the UK governing prisoner transfer. The trouble is that the Supreme Court did not say that, as the Reprieve press release claimed.

He goes on,

Your last point is that the quote from Kat Craig only refers to the detention being found to be “unlawful” rather than “prima facie unlawful”. This is also semantically true, so far as it goes. But it would have been fairer for you to note that the body of the press release quotes the relevant passage twice. As a result, I doubt anyone misunderstood.  I suppose it is fair to say that few press releases can withstand being read as a statute.

I said in my original post that this was my most pedantic point. But again he seems to accept I’m right that the detention was not found unlawful. What he says about press releases and statutes isn’t, I think, any excuse for saying a court has made a finding which it has not. If a line in a press release expressly does that, I don’t think it’s enough to rely, as Clive Stafford Smith does, on quotes elsewhere in the press release to cure the error.

And he doesn’t address my criticism of Kat Craig’s quoted claim that the Supreme Court expressed concern about “grave war crimes”, and the implication that the Court suggested a police investigation was needed.

In summary, Clive Stafford Smith makes a fair point about what Britain knew and when; I’m happy to be put straight on it, and to clear it up.

But that makes no difference to the real “key points” I made in criticism of Reprieve’s dodgy press release, and that Clive’s response does not address: that it wrongly implied the Supreme Court had said the UK may have committed a “war crime” by being involved in Mr. Rahmatullah’s unlawful rendition; that it wrongly said the Supreme Court described his rendition or detention as “a possible war crime”; and that it wrongly said the Supreme Court expressed serious concerns “that grave war crimes may have been committed as a result of which a police investigation must be initiated”.