Here it is. It provides a first opportunity for me to use Document Cloud: you should be able to see one or two of the comments I’ve added to the text, as you read District Judge Riddle’s findings and reasons in full screen or in the viewer below.
District Judge Riddle has just ordered Julian Assange’s extradition to Sweden, according to reporters’ tweets from court, and Sky News. I’ve not yet had sight of the ruling itself yet of course.
So where does he go from here? To be flippant, the practical answer is probably, back to Suffolk. The judge could remand him into custody pending extradition – but I doubt that, especially as there’s likely to be an appeal.
The appeal will be to the High Court under section 26 of the Extradition Act 2003, and Julian Assange’s team will need to given notice of appeal within 7 days. No doubt his team will begin working on their grounds as soon as they get out of court, and they’ll have the difficult immediate task of giving instant advice on his chances.
The appeal can be on a question of law, or of fact: in other words, Julian Assange can raise legal arguments that the judge got the law wrong, or he can simply say the judge made a factual mistake – about why he ended up not being interviewed further in Sweden for instance. So it can be a wide-ranging appeal.
I’m delighted (and excited) to be involved in a new fortnightly law podcast: Without Prejudice.
Charon QC will chair (and occasionally no doubt referee) as David Allen Green of the New Statesman and Jack of Kent and I discuss legal issues of the day with a range of guests. Our first edition will be out on Friday, when we’ll be discussing the Julian Assange ruling among other things – you’ll be able to listen here, so watch out for it!
We hope you’ll enjoy listening as much as we’re expecting to enjoy making it!
Today the Times is running a (£) story headlined:
Cameron is cleared to defy Europe on human rights
The story is based on an eight-page memo prepared for Nick Clegg that Sam Coates has published on Twitter:
[blackbirdpie url=”[blackbirdpie url=”http://twitter.com/SamCoatesTimes/status/38568272400097280″]
It’s not clear who the advice is from or to (although its file name beginning “mojlegaladvice …” suggests the Times thinks it originates from the Ministry of Justice). Nor does it look to me like legal advice prepared by a government lawyer. It looks more like a policy submission from civil servants referring to legal advice. It refers at a couple of points to advice from the Attorney General.
The memo says among other things that, if the UK refused to implement the Hirst judgment on prison votes and refused to pay any compensation ordered by the European Court of Human Rights, the possible sanctions against it would be political rather than legal. The UK would be subject to diplomatic criticism, and in theory to expulsion from the Council of Europe, though this would be unlikely. The UK would lose credibility on human rights internationally. This is the main point the Times takes from the memo.
But none of that is either a revelation, or news. The European Court can order the UK to pay compensation in individual cases brought by prisoners, and the Committee of Ministers of the Council of Europe can refer the UK back to the court to answer for any general refusal to give prisoners the vote. But ultimately, the only way of enforcing any legal obligation, if it’s being flouted, is the physical ability to seize people or property. The Council of Europe cannot do either, so in the end, the sanctions available to it it are political. This is obvious. No competent legal or policy advice could say anything else.
The second thing to say is that the advice certainly does not “clear” the Prime Minister or the government to defy the European Court of Human Rights. On the contrary, the document at paragraph 5 draws attention to paragraph 1.2 of the ministerial code, which refers to
the overarching duty on Ministers to comply with the law including international law and treaty obligations
and later at paragraph 14 makes clear that a deliberate policy of defiance could not be reconciled with the ministerial code. It also emphasises the negative international consequences of defiance, and even flags up the theoretical risk of explusion from the EU.
But there is real news contained in the leaked document.
First, it tells us that the government has referred the Greens and MT judgment to the Grand Chamber of the European Court of Human Rights. That step potentially delays the deadline for implementation of Hirst, and, if the Grand Chamber accepts the case, gives the UK a last chance to try to get the court to change its mind on prisoners’ votes or at least depart from the very invasive approach it took in the Frodl and Scoppola judgments.
Second, the memo tells us the government fears the potential for prisoners to use EU law to force the government to allow them to vote in the European Parliament elections in 2014. That seems to me an entirely realistic fear given that human rights as guaranteed by the ECHR are enshrined as “general principles” of EU law, and so can be enforced through it, and that EU law, unlike international human rights law itself, and so long as we remain in the EU, overrides the wishes of Parliament in our own courts. This may be the potential legal issue that enables Eurosceptics to link the issue of prisoners’ votes to EU membership itself.
Third, it tells us that the Attorney General has advised (presumably both the Attorney and the Advocate General for Scotland in fact, given that this is a UK-wide issue) on the approach to be taken by the government in introducing legislation on this, and that he has advised that a failed but genuine attempt by the government to introduce Hirst-compliant legislation – at least if some sort of minor change from the current law is accepted by Parliament – might be enough to satisfy the Strasbourg court that the UK had met its obligations.
Today I talked to Charon QC on the issue of prisoners’ votes, following MPs vote yesterday in favour of defying the European Court of Human Rights, and retaining the UK’s current “blanket ban”. We explain what the ECtHR is and its role as an international court, consider what if any difference MPs decision yesterday might make, and what might happen now.
This really is a conundrum for the government – and involves an intriguing collision of national and international law with politics and diplomacy.
Listen to the podcast here.
MPs in the Commons will today debate the motion put down by David Davis, Jack Straw and others (main business, over half way down the order paper), which is in these terms:
That this House notes the ruling of the European Court of Human Rights in Hirst v the United Kingdom in which it held that there had been no substantive debate by members of the legislature on the continued justification for maintaining a general restriction on the right of prisoners to vote; acknowledges the treaty obligations of the UK; is of the opinion that legislative decisions of this nature should be a matter for democratically-elected lawmakers; and supports the current situation in which no prisoner is able to vote except those imprisoned for contempt, default or on remand.
On the order paper you can also see an amendment supported by Sir Peter Bottomley, who in favour of prisoners’ votes, and one by Anne Main and others including John Redwood, Peter Lilley and Richard Shepherd, which
instructs the Government not to pay any compensation to prisoners and former prisoners in consequence of the maintenance of the current situation.
I have some sympathy with David Davis and the others wanting to dig their heels in about this: I am a supporter of the European Convention and Court of Human Rights, but as I’ve written before, the Court is sometimes far too ready to cross the line into detailed national policy, and it has done so in the Hirst case which is the root of the UK’s problem, and in its contradictory rulings since then.
The position of Jack Straw is more questionable, though: until recently he was Minister of Justice in a government publicly committed to implementing Hirst – though obviously at the same time putting implementation off to be dealt with after the 2010 election, when it would quite likely be someone else’s headache (as has indeed come to pass). I think it’s quite rich of Jack Straw now to “come out” as resisting implementation. Frank public opposition from him while in government might have had more impact.
Now, having had an international law obligation to implement Hirst for nearly 6 years, the UK has been given a clear timetable to do so in Greens & MT – by the end of this summer, assuming the government does not ask a Grand Chamber of the Court to reconsider the judgment. The Grand Chamber has already considered this of course – back in Hirst, in 2005. To be fair, this is the first time backbenchers have had the chance to express their view. But it is desperately late for MPs to be trying to resist Hirst now. And if this motion is passed – let’s see – the government will have a very big problem.
On the one hand, assuming the motion is passed, it will be clearly difficult to get any legislation through Parliament to give effect to Hirst. It’s true that would give the UK one more argument to make to its counterparts in the Council Committee of Ministers* of the Council of Europe, who are responsible for enforcing judgments, when making diplomatic attempts to play for more time or more sympathy. It might cause the government to try the desperate last legal throw of asking to refer Greens v MT to the Grand Chamber – there is time, just – even though there is little in that judgment itself to disagree with. There is a remote chance such a hearing might happen, and might cause a shift of approach in the court (where a minority of judges has in the past – in Hirst itself, notably – agreed with me and opponents of prisoners’ voting).
But equally, the government’s obligations in international law are clear, we have given other countries the clear impression for years that we intended to implement, and the legal clock is now ticking. While claims that the UK is at risk of compensation claims amounting to £100 million may be exaggerated (I’d say that’s the very worst conceivable case scenario; I think £50 million is what I’d politically “insure for” and that something like £5-£30 million is much more likely), public money is being put at risk. More seriously, the UK would be more at risk of being (I think) the first state brought back to the Court under new “infraction” procedures to answer for its non-implementation of a judgment. To beat Russia and Turkey to that dubious prize would not be ideal.
So, how to square the circle? How can the government fulfil its international law obligations, avoid the risk of being humiliatingly hauled up before the court in Strasbourg and a possible payout of up to £50 million – yet also satisfy MPs? Is it possible? I think it is.
If I were still in government advising ministers, I think I’d be reminding them that one way of implementing Hirst would be simply to allow any convicted prisoner to apply to the judge when sentenced to imprisonment to lift, in his or her case, the ban on voting in general elections to Westminster and the devolved national legislatures. There could be tough-sounding sentencing guidance telling judges to lift the ban only where absolutely necessary to comply with human rights. This would not be as clear or principled an approach as the government’s recent proposal for a four-year cut-off. But in terms of cynical realpolitik, it could work.
In reality, most convicts would apply. And when making the decision, judges would have to take account of Strasbourg case law – and so would probably end up lifting the ban in the vast majority of cases, as the cases seem to suggest may be required. Many, probably most, prisoners would end up getting the vote. Yet this could conceivably be sold now to MPs as a tough approach, refusing to give the vote by law to any prisoner at all, giving “stern” guidance to judges aiming at delivering minimal compliance case-by-case, and crucially, handing the problem to someone else. In due course MPs could enjoy the sport of blaming “activist” judges for their outrageous laxness in lifting the ban more often than not.
Cynical? Two-faced? Dishonest? You might think that, as Francis Urquhart would say. I won’t be surprised if the government proposes something like it.
[*Thanks to Faceless Bureaucrat for pointing out my error in comments]
I never thought we needed a Supreme Court, myself. The Law Lords worked perfectly well as far as I was concerned. But we got one, the main justification for the increased expense being increased judicial independence. To me, this supposed gain was always a pure abstraction: no one really thought the Law Lords lacked independence from the executive. And now, in his lecture last night on judicial independence, the President of the Court Lord Phillips seems to be suggesting the Supreme Court is actually less independent than its predecessor because it’s funded in part by the Ministry of Justice. If he were right, it really would make the creation of the Court a national scandal. He’s wrong, though. His stance is financially and politically unrealistic as well as, again, hugely exaggerating the importance of the theoretical separation of powers.
He may have a fair point in criticising some of the things Lord Falconer, then Lord Chancellor, said during the passage of the legislation that gave birth to the Supreme Court. Perhaps Lord Falconer gave him the wrong impression about how the Court’s budget would be fixed and found. I don’t know. But the impression he gained seems to me almost innocent in its unreality:
The chief executive and I would decide how much we needed, obviously taking into account the overall financial situation. We would give our bid to the Lord Chancellor who would pass it on to the Treasury. The Treasury would get Parliament’s blessing to give us what we needed which would be paid to us straight out of the Consolidated Funds. Thereafter the normal regime of accountability would apply through audit by the National Audit Office, publication of accounts, and scrutiny by the Public Accounts Committee if necessary.
Did he really think he and Chief Executive Jenny Rowe, neither of whom is directly accountable to the public, should be able to fix their own budget unilaterally and expect it to passed on by ministers as “simply conduits” (to use Lord Phillips’s language) for automatic rubber-stamping by Parliament? The only constraint this would put on his ability to spend taxpayers’ money would be after-the-fact reporting by a quango.
In reality, he’s clearly had to negotiate his budget with ministers in advance – which must be right since a minister will have to be accountable to Parliament for it. Actually he doesn’t seem to be complaining about this. What he actually seems to be complaining about is that he should have to deal with the Lord Chancellor rather than the Treasury; an odd complaint to make given that the Lord Chancellor has a greater legal duty to defend judicial independence than the other Chancellor.
Lord Phillips admits that government has funded his new Court adequately,
The Lord Chancellor made sure that we were provided with a most satisfactory court house as I believe anyone who has visited us at the converted Middlesex Guildhall would agree.
They certainly would. He makes clear too that government tried to create for him a sort of independent funding stream,
it was agreed that the costs of Supreme Court civil business could be spread across the costs of civil business as a whole. There thus came about the current rather complex arrangements, whereby a proportion of the running costs are required to be met by contributions taken from civil court fees in England and Wales, with corresponding contributions also from Scotland and Northern Ireland.
What seems to have gone wrong is that
A major contribution has been due … from the civil courts of England and Wales, based on their assumed fee income. This has not been achieved … the Court Service of England and Wales has not been able to provide us with their contribution and we had to call upon the Lord Chancellor to make up the difference, which he did.
Again, then, there is no complaint that the Lord Chancellor has not paid up. Indeed, the complaint seems to be that he has paid up, because it is this dependence on the Ministry of Justice that leads Lord Phillips to conclude that
our present funding arrangements do not satisfactorily guarantee our institutional independence.
Where I think Lord Phillips is going wrong is in his hopeless, fetishistic pursuit of total institutional independence. Unless he wants to fund himself entirely by being a “trading fund” (a public body which stands on its own financial feet by charging fees directly to its users), an idea he describes in the lecture as
wholly impractical, not to say a denial of access to justice
which which I agree, then he has to face the fact that the court is dependent on public funds, which must be raised and transferred to the Court somehow via a publicly accountable system.
He could be allowed to levy a Supreme Court Tax directly on every citizen, I suppose. But failing that (and the direct political accountability that would involve him in) either he must present his own budget to Parliament each year and seek its support – which is the most political activity imaginable – or else see someone else do it for him and fund him indirectly out of moneys voted by Parliament. That is what the Lord Chancellor is doing. I cannot for the life of me understand why it matters, in terms of judicial independence, that the Ministry of Justice should be the funder of last resort rather than H.M. Treasury directly. In fact as I’ve said, the Lord Chancellor’s legal obligations in terms of judicial independence must qualify him as the best minister to support the Court.
The conclusion must I think be that Lord Phillips is simply unhappy with the cuts the Court has to face. Tough luck. When legal aid is being cut his Court, the expense of which was never necessary in the first place, is simply not a priority. There may be a good argument that his and his colleagues’ salaries should be cut.
Finally, Lord Phillips rejects the idea of
some form of Parliamentary scrutiny
of proposed Supreme Court justices along the line of the confirmation hearings held in the USA (a country committed to the separation of powers doctrine Lord Phillips attaches such importance to). This he fears would politicise the judiciary. I agree. But in order to avoid political scrutiny, judges must be seen to be genuinely non-political.
Political scrutiny will be ugently and rightly demanded if judges choose to politicise themselves, as Lord Phillips has now done over the allocation of public money and as he did three years ago with his outrageous claim that it is “not very radical” to propose resolving family disputes in this country by sharia law.
Earlier I showed you the draft skeleton argument the defence had prepared in January in advance of the extradition hearing today. Now the defence has made available its final skeleton argument (thanks, BBC). Here it is:
Julian Assange is in court again today – this time, at last, for the substantive hearing about his extradition. I wrote before Christmas about the Extradition Act 2003 and the issues the court will resolve:
As for the full extradition hearing itself, all the district judge has to decide is
- whether the offence he’s wanted for is an “extradition offence” (section 10 read with section 64, I think in this case section 64(3) in particular); there seems to be no dispute about this;
- whether extradition is “barred” under section 11, which it is by reason of “extraneous conditions” under section 11(1)(b) read with section 13 if extradition is really about punishing him for his political views, or if they might prejudice his trial, and
- whether extradition would comply with human rights (section 21).
Unless Assange can persuade the court that this is politically motivated or that his trial in Sweden might not be fair, or can persuade it that for instance extradition would breach his right to freedom of expression, then extradition will go ahead. His solicitor Mark Stephens has suggested there could be other technical arguments, but I suspect they’re uphill.
We were given a guide to the defence’s probable arguments in this draft skeleton argument prepared in January (names of complainants redacted by me):
Assange Draft Skeleton Argument
That’ll have been further developed now, but it shows us they’ll be relying on all the bulleted points I mentioned, plus an abuse of process argument which has several aspects: it’s an abuse, they’ll argue, because the European Arrest Warrant is defective since the prosecutor is not the appropriate judicial authority to issue it, because Julian Assange is not “accused” of an offence as required by the legislation since he is wanted only for questioning, and because the Swedish authorities have acted improperly and not given him proper disclosure of what he is suspected of.
The Extradition Act seems drafted in a way that confines the hearing to a strict sequence – a straitjacketed sequence, even – and to force the district judge to consider first whether there is an extradition offence, then whether extradition is barred because of an underlying political motive, and finally human rights questions. That sequence is mucked up a bit by the abuse of process arguments, which I’d guess the district judge may take first. And the judge could I suppose decide to hear argument on all points before determining any of them. But the clear legislative structure should give us a clue to what’s happening in the hearing. If at some point later today or tomorrow the defence is making its case that extradition is barred under section 11, then it may mean it has lost on the question of whether Assange is wanted for an extradition offence; if it gets to its human rights arguments, it may mean it’s lost on everything else.
As I’ve said before, I expect this hearing to end with an order to extradite Julian Assange to Sweden. If I’m right, we can look forward in the Spring to an appeal to the High Court under section 26 of the 2003 Act.
Today MPs debated Anna Soubry MP’s Anonymity (Arrested Persons) Bill, which would have made it a criminal offence (see clause 3) for anyone to publish the name of a person arrested by the police (clause 1) until either he’s charged, or a Crown court judge has directed that it’s in the public interest to name him (clause 2). The judge could have made the direction of his or her own motion, but it’s not obvious why an individual judge would want to do so unilaterally. More realistically, a public interest application could be made by the arrestee himself, by the police or CPS, or anyone else the judge thought had a sufficient interest – which would obviously cover media organisations.
Frances Crook of the Howard League backed the proposal (hat-tip to David Allen Green, who’s also expressed support). But I’m against it. I’m glad Anna Soubry ended up withdrawing the bill when the government declined to support it.
What was wrong with the way the press covered the arrest of Joanne Yeates’s landlord was not the publication of his name, but of other intrusive, irrelevant and speculative material about him – behaviour that caused the Attorney General to warn the media it was risking contempt of court.
The wrong response to this is to retreat from public justice. That’s a worrying modern tendency, reflected earlier this year in the government’s wrong-headed attempt to give anonymity to rape defendants. Public justice is a hugely important protection for the public and for defendants, which is why the European Convention on Human Rights for example guarantees defendants a fair and public trial.
But worse, Anna Soubry’s bill went too far in limiting freedom of expression. Why on earth should responsible journalists have to pay lawyers to race to court before being free to identify someone it’s plainly in the public interest to name – for instance, an MP arrested for expenses fraud – and be gagged by law, under threat of imprisonment, until they obtain a judge’s direction? No one who supports a free press could seriously support that. The default position should, on the contrary, be openness subject to limited restrictions to protect children, rape victims and so on.
So it’s good that the justice minister Crispin Blunt said in the Commons debate that the government didn’t supporting this bill. The bad news is that it’s the tricky details he’s worried about more than the principle. He said the Attorney General will be looking again at contempt of court law – which is good. But I hope the government doesn’t come back with new proposals anything like Anna Soubry’s.
The real solution to tabloid misconduct – and a solution much friendlier to a free press – is to junk the useless Press Complaints Commission, and have proper regulation of newspapers, along the lines of Ofcom’s regulation of broadcasting.
Simon Jenkins’s recent suggestion that journalists should regulate themselves as a serious profession, like lawyers and doctors, is a good one. And I agree with Roy Greenslade’s implication that the Attorney General needs to go beyond reminders and warnings, and be much tougher about enforcing the law of contempt. It’s the only language them tabloids understand.