Cameron’s sovereignty plan: what to hope for, and what to fear

February 21 2016

Cameron on MarrDavid Cameron’s EU deal has been published. But there’s a missing piece of his jigsaw: a “sovereignty plan” that he hoped would reassure waverers like Boris Johnson. On today’s Andrew Marr show, the Prime Minister hinted at what this plan might be (from 49 minutes 10 seconds into the programme; a sound recording is here).

He told Marr that

we’re going to set out in the coming days proposals … to make clear that … the British Parliament is sovereign. We have chosen to join the EU, we could choose to leave the EU, and I think there’s some important work to put that point beyond doubt …

Marr (who quizzed Cameron on the right legal points) put to him that the UK can’t just “declare UDI” from EU law. He replied that

What you can do … is just put beyond doubt in people’s minds, because sometimes this is questioned … that in the end what our Parliament does, our Parliament can undo; it is a sovereign Parliament …

He declared that—

I am passionate, and love the institutions and the constitution we have in our country …

which is nice but surprising, given Cameron’s history of self-serving constitutional whimmery, such as his demand for compulsory elections after a change of PM, which was flatly contradicted by his awful Fixed-term Parliaments Act; and such as his ongoing support for a wrong-headed “British Bill of Rights”, and recently his government’s spiteful attack on the House of Lords for acting constitutionally over tax credits. The PM has proved himself no conservative on the constitution, or great lover of it.

But back to sovereignty. Asked if he might empower the UK Supreme Court to restrain the European Court of Justice, Cameron said

there is this argument, which our proposals will address, that countries that have written constitutions have sometimes been able not only to assert the sovereignty of their own Parliament … but actually to go further and say that those constitutional principles have to be taken into account.

Finally, asked if he’s proposing a written constitution, Cameron replied

I’m not making that argument. I think we shouldn’t have to do that in order to give to ourselves what some other countries have managed inside the EU—no, I don’t think that’s necessary …

which is a relief. A written constitution would not preserve Parliamentary sovereignty, but end it. So we’ll avoid the worst.

Cameron may simply want some re-restatement that Parliament is sovereign. I say “re-restatement” because it wouldn’t be the first time he’s induced Parliament pointlessly to restate its own sovereignty. Here’s what I wrote about that nonsense at the time.

But it also seems that Cameron has swallowed the myth that other countries—no doubt he means Germany, whose constitutional court is envied by some—are more insulated from EU law than Britain. We must remind ouselves of the basic, telling constitutional fact: there is no Parliamentary sovereignty in Germany. So when Cameron said other countries

have sometimes been able … to assert the sovereignty of their own Parliament

he was flatly wrong. If any EU member state has Parliamentary sovereignty to assert, it’s not Germany. Germany’s parliament is subordinate to its written constitution, the Grundgesetz (here in the Bundestag‘s own English translation). This is clear from article 1(3), which introduces articles 2-19 (in essence Germany’s “bill of rights”) and says

The following basic rights shall bind the legislature …

and article 20(3), which says

The legislature shall be bound by the constitutional order …

Parliamentary sovereignty is the direct opposite: it means Parliament is not bound by any higher law. How can we preserve Parliamentary sovereignty by copying a country that rejects it?

What the PM overlooks is that assertive noises come from the German court because it, not the Bundestag, has prime constitutional power. Indeed, the court limits what the federal parliament may assent to in Europe. The German court’s power, in other words, comes at the expense of its parliament.

They are only noises, by the way: there is no example of an EU law that Britain obeys and Germany rejects.

If German judges ever refuse to implement EU law, there’ll be a legal crisis. The ECJ could fine Germany; someone might have to give way; or else a solution would be found by politicians to satisfy both sides. But it’d be just the same if Britain rejected an EU law. The ECJ might fine us; a solution might have to be found satisfying both the ECJ and Parliament.

Parliamentary sovereignty means that in Britain it is Parliament that reserves the right to reject EU law—not a constitutional court—and Parliament that has ultimate primacy. So Britain is already in exactly the same constitutional relationship to the EU as Germany. The difference is that we have a sovereign Parliament, while Germany has a sovereign written constitution guarded by its constitutional court. Germany’s apparent extra safeguard is an optical illusion.

If a German mirage leads the PM to empower our own judges, that power may well one day be turned on Parliament. Our top judges were relabelled a “Supreme Court” not long ago; they’ve been urged to assert themselves against the European Court of Human Rights, and are already doing so against EU law. If you dress them up further as a “constitutional court” and give them new powers to declare things in breach of a fundamental or embryonic written constitution (such as a “bill of rights”), they might soon see themselves as our constitution’s

ultimate controlling factor … defining the limits of Parliament’s legislative sovereignty

to adapt Lord Hope’s words in Attorney General v Jackson in 2005 (para. 107). They might even feel emboldened to qualify Parliamentary sovereignty as having been

established on a different hypothesis of constitutionalism

to quite Lord Steyn’s notorious words in the same case (para. 102). Our constitution really would start to resemble Germany’s, and Parliamentary sovereignty as we know it would be finished.

If conservatives, of all people, end up empowering judges against Parliament, they’ll bitterly regret it. Anyone who really loves the British constitution should fear this plan, and hope it’s anodyne.

2016-02-21T19:25:37+00:00

The UN working group’s Assange opinion

February 5 2016

Here’s the opinion of the UN working group on arbitrary detention, which has concluded that Britain and Sweden have arbitrarily detained Julian Assange. It calls on both countries to release him, and pay him compensation.

I wondered in my earlier post how the working group might classify the “detention”—in fact, it puts it in what it calls “category III”, where detention is arbitrary because of a grave non-observance of the right to a fair trial. I thought that was obviously the least likely possibility (Sweden being unable to put Julian Assange on trial at all, as things stand) but the working group has concluded otherwise.

The reasoning of the working group is thin, to say the least. It begins by noting that Assange was segregated from other prisoners for the ten days he was remanded in custody in Wandsworth prison—and simply goes on to say (para. 86)—

arbitrariness is inherent in this form of deprivation of liberty, if the individual is left outside the cloak of legal protection, including the access to legal assistance …

without considering whether the decision to segregate him was justified, and without considering the fact that he had lawyers and applied for bail, so was not “left outside the cloak of legal protection”. On this approach, every segregated prisoner in the UK is arbitrarily detained.

Assange’s detention, the working group goes on, continued for 550 days in the form of what it calls “house arrest” (para. 87):

During this prolonged period of house arrest, Mr. Assange had been subjected to various forms of harsh restrictions, including monitoring using an electric tag, an obligation to report to the police every day and a bar on being outside of his place of residence at night. In this regard, the Working Group has no choice but to query what has prohibited the unfolding of judicial management of any kind in a reasonable manner from occurring for such extended period of time.

This is of course the period in which Julian Assange was released on conditional bail and living at Ellingham Hall. Its quite true he had a curfew, and had to be there during the night hours. It’s true he was tagged, and had to report daily to the police. But otherwise as I understand it he was free to come and go. And these admittedly strict bail conditions are understandable given that Assange had already flown out of Sweden, where he was wanted. The working group does not consider why those bail conditions were imposed, the fact that Assange could have applied for a variation of bail, or that his move to the Ecuadorian embassy can be said to justify, after the fact, the judge’s imposition of bail conditions.

Breathtakingly, the working group fails to mention the fact that Assange entered the Ecuadorian embassy after losing his Supreme Court battle against extradition. And as far as his prolonged residence there is concerned, the working group says (para. 90)

Mr. Assange’s stay at the Embassy of the Republic of Ecuador in London to this date should be considered as a prolongation of the already continued deprivation of liberty …

but never actually addresses the question whether this really is detention, and even if it is whether Britain and Sweden are the “detainers”. Indeed in the next paragraph (91) it says revealingly

What matters in the expression ‘arbitrary detention’ is essentially the word “arbitrary”

which perhaps explains the lack of analysis of whether there is now any “detention”. To be fair, the working group says (para. 91)

Placing individuals in temporary custody in stations, ports and airports or any other facilities where they remain under constant surveillance may not only amount to restrictions to personal freedom of movement, but also constitute a de facto deprivation of liberty

but of course neither Britain nor Sweden has “placed” Julian Assange in the Ecuadorian embassy.

Perhaps paragraph 97 of the opinion gives us most insight into the working group’s approach. It criticises

a substantial failure to exercise due diligence on the part of the concerned States with regard to the performance of the criminal administration

complains that Assange

is still left even before the stage of preliminary investigation with no predictability as to whether and when a formal process of any judicial dealing would commence

and offers the insight that

From a time perspective, it is worse than if he had appeared in Sweden for questioning and possible legal proceeding when first summoned to do so

before concluding—

it defeats the purpose and efficiency of justice and the interest of the concerned victims to put this matter of investigation to a state of indefinite procrastination.

Yet at no point does it consider whether Julian Assange might be even partly responsible for any of the delay, uncertainty or “indefinite procrastination”. This sums up an awfully reasoned opinion that in effect accepts all Julian Assange’s arguments uncritically.

In contrast, the dissenting opinion of Vladimir Tochilovsky is to the point, and hard to argue with. As far as the embassy stay is concerned, he says (para. 3)

In fact, Mr. Assange fled the bail in June 2012 and since then stays at the premises of the Embassy using them as a safe haven to evade arrest. Indeed, fugitives are often self-confined within the places where they evade arrest and detention. This could be some premises, as in Mr. Assange’s situation, or the territory of the State that does not recognise the arrest warrant. However, these territories and premises of self-confinement cannot be considered as places of detention for the purposes of the mandate of the Working Group.

As for the period on conditional bail, he says

In regard to the house arrest of Mr. Assange in 2011-2012, it was previously emphasised by the Working Group that where the person is allowed to leave the residence (as in Mr. Assange’s case), it is “a form of restriction of liberty rather than deprivation of liberty, measure which would then lie outside the Group’s competence” … Mr. Assange was allowed to leave the mansion where he was supposed to reside while litigating against extradition in the courts of the United Kingdom. As soon as his last application was dismissed by the Supreme Court in June 2012, Mr. Assange fled the bail.

Philip Hammond is right: this working group opinion is ridiculous.

2016-02-05T15:37:20+00:00Tags: , , , , |

Julian Assange’s submission to the UN working group

February 4 2016

We awoke to the extraordinary news that Julian Assange had announced he’d leave the Ecuadorian embassy in London tomorrow and submit to arrest if the UN working group on arbitrary detention turned down his complaint to them. Shortly afterwards, the BBC reported that the working group has come down in his favour. That would be an astonishing conclusion for the working group to reach.

We won’t be able to read the working group’s opinion at least until tomorrow. In the meantime, here’s the 42-page submission Julian Assange sent to the working group, and that it seems has persuaded them.

The reason this opinion is so astonishing is because it’s hard to see how either Britain or Sweden can be described as detaining Julian Assange at all, or depriving him of liberty (to use the expression the working group prefers (see pages 15-16 of its 2015 annual report).

Julian Assange refers in his submission to cases like Riad and Idiab v Belgium in which the European Court of Human Rights ruled that two failed asylum seekers were deprived of liberty contrary to article 5 of the ECHR when effectively trapped in an airport transit zone. In that case, the Belgian authorities took the two men to the airport to technically free them, following court decisions ordering their release; in the transit zone they were able to leave only by consenting to deportation. It seems they were wholly dependent on charity for food and drink.

But in his own case, of course, Assange was not taken to the Ecuadorian embassy by the British authorities. Nor is his being there part of any official strategy to force him out of the country. He truly is there by choice, and the fact that he’s not deprived of his liberty either by Britain or Sweden is conclusively shown by the fact that both countries would very much like to do so, if they can get their hands on him.

When we do see the opinion, a point of special interest will be how the working group categorises this “deprivation of liberty” in terms of the classification scheme it adopts:

A) When it is clearly impossible to invoke any legal basis justifying the deprivation of liberty (as when a person is kept in detention after the completion of his sentence or despite an amnesty law applicable to him)(Category I);

B) When the deprivation of liberty results from the exercise of the rights or freedoms guaranteed by articles 7, 13, 14, 18, 19, 10 and 21 of the Universal Declaration of Human Rights and, insofar as States parties are concerned, by articles 12, 18, 19, 21, 22, 25, 26 and 27 of the International Covenant on Civil and Political Rights (Category II);

C) When the total or partial non-observance of the international norms relating to the right to a fair trial, spelled out in the Universal Declaration of Human Rights and in the relevant international instruments accepted by the States concerned, is of such gravity as to give the deprivation of liberty an arbitrary character (Category III).

D) When asylum seekers, immigrants or refugees are subjected to prolonged administrative custody without the possibility of administrative or judicial review or remedy (category IV)

There is a category V — where detention is discriminatory — but Julian Assange does not allege that.

The working group might well put this “deprivation of liberty” in “category I”: once you conclude that a situation like Julian Assange’s amounts to a deprivation, then it will clearly be impossible to find a legal basis for it. That’s because neither Britain nor Sweden is currently able to exercise any official powers over Julian Assange, and cannot therefore identify any legal powers they’re exercising, or justify them. There’ll be some irony about it, if this if their conclusion.

“Category II” is I suppose possible, if the working group thinks this is all a conspiracy to silence or punish Asange’s work with Wikileaks—so that the detention results from the exercise of his freedom of expression under article 19 UDHR.

It’s hard to see how they can find a “category III” deprivation of liberty, since he’s not on trial on Britain, and Sweden is unable to put him on trial. Nor is it obvious how either country has gravely impaired the fairness of any future trial in Sweden.

Finally, “category D” is I guess a possibility, if the working group starts from the assumption that Assange is a refugee (Ecaudor has granted him diplomatic asylum, a concept not accepted by Britain or most countries outside Latin America) and is “in custody” without the possibility of review. Even that’s hard to imagine since he can apply to the High Court at any time, arguing that the police or government are holding him in breach of the Human Rights Act.

2016-02-04T15:54:06+00:00Tags: , , , , , , |

Miranda: the Court of Appeal’s interpretation of “terrorism”

January 19 2016

I’ve already criticised what I think is a fundamental contradiction undermining the Court of Appeal’s judgment in the Miranda case. But there’s another aspect of the judgment that I must mention, which may well be of more lasting importance.

The power used to stop and question David Miranda is conferred by paragraph 2(1) of Schedule 7 of the Terrorism Act 2000:

An examining officer may question a person to whom this paragraph applies for the purpose of determining whether he appears to be a person falling within section 40(1)(b)

such a person being defined by section 40(1) which provides that a

“terrorist” means a person who …

(b) is or has been concerned in the commission, preparation or instigation of acts of terrorism.

Deeper in the legal labyrinth, the definition of “terrorism” is in Section 1:

(1) In this Act “terrorism” means the use or threat of action where—
(a) the action falls within subsection (2),
(b) the use or threat is designed to influence the government or an international governmental organisation or to intimidate the public or a section of the public, and
(c) the use or threat is made for the purpose of advancing a political, religious, racial or ideological cause.

(2) Action falls within this subsection if it—
(a) involves serious violence against a person,
(b) involves serious damage to property,
(c) endangers a person’s life, other than that of the person committing the action,
(d) creates a serious risk to the health or safety of the public or a section of the public, or
(e) is designed seriously to interfere with or seriously to disrupt an electronic system.

So the purpose of stopping and questioning David Miranda was, according to the framework laid down by this legislation, to see if he was a person concerned in terrorism, very widely defined.

Applying this definition of terrorism on its face, as I wrote in 2013, you might well argue that publishing the content of sensitive intelligence-related documents could “create a serious risk to the safety of the public”, and so satisfy section 1(2)(d). The Guardian’s arguably campaigning use of the Snowden documents could be said to advance a political cause, satisfying the section 1(1)(c) condition: a political cause need not be a malign one. And you might say use of the documents by the Guardian to create a public debate is “designed to influence the government” as required by section 1(1)(b).

The apparent width of the definition of terrorism here is a matter of concern. I thought the argument made for David Miranda in the first instance judicial review proceedings had some force, and I noted examples his counsel Matthew Ryder QC gave:

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.

Ryder didn’t succeed with Lord Justice Laws, but took a similar approach on appeal (see para. 46 of the judgment):

Mr Ryder gave another example: a group of junior doctors wishes to erect a sign to protest about Government policy towards the NHS. Inadvertently, some members of the group erect it in a way that accidentally endangers the life of a passer-by. Mr Ryder submits that, if the literal interpretation of “act of terrorism” adopted by Laws LJ is right, the junior doctors erecting the sign with a political message have committed acts of terrorism. They have taken an action designed to influence the Government to advance a political cause, which (even if entirely unknown to them) endangered the public or created a risk to health and safety.

And now, on appeal, Matthew Ryder has succeeded in persuading the Court of Appeal to depart from pure literalism and to read some mental element in to the definition of terrorism.

At paragraphs 51-2 of the judgment, Lord Dyson says

First, the literal interpretation involves according to the word “terrorism” a meaning which is far removed from its ordinary meaning … Secondly, the fact that the literal interpretation potentially gives rise to unpalatable consequences … raises a serious question as to whether it can have been intended by Parliament … Thirdly, the interpretation does not reflect the aim and intention of the promoters of the Bill as expressed to Parliament.

In my view, these three factors when taken together provide a powerful reason for rejecting the literal interpretation.

Lord Dyson looked at section 1(2) in particular, and chopped it into three “categories”: the first category, subsections 2(a) and (b), covers threatened action which—

(a) involves serious violence against a person

or

(b) involves serious damage to property

As far as these are concerned, he said (para. 53)—

It is not an ordinary use of language to describe a person as being “involved” in violence or damage to property if he is not aware that he is being so involved or if what he does is accidental. On this point, I respectfully disagree with what Laws LJ said

In relation to the third category, covering threatened action which—

(e) is designed seriously to interfere with or seriously to disrupt an electronic system

Lord Dyson said (pra. 54), tying his thinking to the first category also, that

The third category of action is … clearly defined by reference to the state of mind of the actor. For the reasons that I have given, I consider that the first category of action must also be considered as importing a mental element.

That left the second category, covering threatened action which

(c) endangers a person’s life, other than that of the person committing the action,

or

(d) creates a serious risk to the health or safety of the public or a section of the public, or

About this Lord Dyson said (para. 54):

I accept that, on a literal interpretation, the second category could include acts which endanger a person’s life even if the actor is not aware that they do. But such an interpretation would dispense with the need for a mental element in the second category, whereas it is required in the first and third categories. It is unlikely that Parliament would have intended to make such a distinction between the three categories. If Parliament had intended to provide that a person commits an act of terrorism where he unwittingly or accidentally does something which in fact endangers another person’s life, I would have expected that, in view of the serious consequences of classifying a person as a terrorist, it would have spelt this out clearly.

Lord Dyson sees all of the types of threatened action in section 1(2) as requiring some mental element, then. In order to be concerned in terrorism, a person must be at least reckless as to causing serious violence or damage, danger to life, or risk to health and safety; or else design to interfere with or disrupt a system. The legal definition of terrorism has been significantly narrowed.

It’s important to note that Lord Dyson made clear (para.55) that

It does not follow that publication of material cannot amount to an act of terrorism. If (i) the material that is published endangers a person’s life (other than that of the person committing the action) or creates a serious risk to the health or safety of the public or a section of the public; and (ii) the person publishing the material intends it to have that effect (or is reckless as to whether or not it has that effect), then the publication is an act of terrorism, provided, of course, that the conditions stated in section 1(1)(b) and (c) are satisfied.

And this ruling on the meaning of terrorism, not having been decisive in the appeal, does not in itself create legally biding precedent for the courts of the future. Nonetheless, if it is followed—particularly if it is approved on this point by the Supreme Court, which seems to me likely—this may represent the most important aspect of the case, and a significant victory for critics of Britain’s tough terrorism legislation.

Which no doubt explains why the independent reviewer of terrorism legislation, David Anderson QC, thinks this is an important ruling:

2016-01-19T22:37:05+00:00Tags: , , , , , |

The self-contradictory Miranda appeal ruling

January 19 2016

I’ve been following for some time David Miranda’s challenge to the lawfulness of his questioning at Heathrow airport in 2013. I wrote shortly after his detention; I covered his application for an injunction; I published his grounds for judicial review; I live-tweeted the judicial review hearing and analysed Lord Justice Laws’s judgment against Miranda; and last year, I published his grounds of appeal.

Having sat through some (not all) of the appeal hearing, I’m not surprised David Miranda has again seen his questioning ruled lawful, and compliant with his human rights. But I am very surprised by the Court of Appeal’s judgment today, in which it also declares incompatible with free expression the legislative power to stop and question Miranda, in Schedule 7 para. 2 of the Terrorism Act 2000. These two rulings, in the same judgment, seem to me mutually contradictory.

The surprise “incompatibility” ruling begins at paragraph 94, at the end of the judgment, and the Master of the Rolls Lord Dyson gets to the meat of his reasoning from paragraph 108 on. He says (para. 113)—

I accept that the fact that the powers must be exercised rationally, proportionately and in good faith provides a degree of protection. But the only safeguard against the powers not being so exercised is the possibility of judicial review proceedings. In my view, the possibility of such proceedings provides little protection … An important rationale for the principle of legal certainty that underpins the concept of “prescribed by law” is that there should be adequate safeguards against arbitrary decision-making … the possibility of judicial review proceedings to challenge the rationality, proportionality and good faith of a decision to interfere with freedom of expression in cases involving journalistic material cases does not afford an adequate safeguard.

And goes on at paras. 114 and 5 to conclude that—

prior judicial or other independent and impartial oversight (or immediate post factum oversight in urgent cases) is the natural and obvious adequate safeguard against the unlawful exercise of the Schedule 7 powers in cases involving journalistic freedom. For the reasons that I have given, the other safeguards relied on by Laws LJ provide inadequate protection.

[The Terrorism Act 2000], therefore, contains no adequate legal safeguards relating to journalistic material …

Lord Dyson’s ruling on this is perhaps a bit surprising given what he says earlier in his judgment about the realities of judicial scrutiny of police and security agency decisions in a case like this. At paragraph 79 he says

When determining the proportionality of a decision taken by the police in the interests of national security, the court should accord a substantial degree of deference to their expertise in assessing the risk to national security and in weighing it against countervailing interests. This is because the police have both the institutional competence and the constitutional responsibility to make such assessments and decisions.

He goes on a para. 82 to say

There is no reason to disagree with their assessment of the risk. Indeed, the court is ill equipped to do so. The police and the Security Service have the expertise and access to secret intelligence material which rightly make it very difficult to challenge such an assessment in a court of law.

If this is right, one wonders how much protection prior judicial authorisation would really offer a journalist. But there are bigger problems with the judgment than this, as we’ll see.

Lord Dyson’s reasoning is based on the requirement that any inference with free expression must be “prescribed by law”: in other words (to paraphrase the way Lord Hughes put it in the Supreme Court last year in Beghal, at para. 29 and 30) any law such as Schedule 7 must be accessible and its operation sufficiently foreseeable so that people subject to it can regulate their conduct; and it must contain sufficient safeguards to avoid its arbitrary exercise.

If there are not sufficient safeguards, then the power in question will breach freedom of expression even if it is used for a legitimate purpose and even if its use could be proportionate to that purpose. Again, as Lord Hughes put it in Beghal (para. 33) calling the requirement “legality”—

legality is a prior test which is designed to ensure that interference with Convention rights can be proportionate.

Legality is a logically prior requirement: only if a power is “prescribed by law” can its use be proportionate and so rights-compliant.

So far, so legally coherent. The problem is that, earlier on in his judgment, Lord Dyson held that stopping and questioning David Miranda was proportionate and rights-compliant, and for that reason lawful. At paragraph 84, agreeing with Laws LJ’s original judgment, he said—

the Schedule 7 stop was an interference with press freedom. But the compelling national security interests clearly outweighed Mr Miranda’s article 10 rights on the facts of this case. In reaching this conclusion, I also bear in mind the considerable deference that the court should accord to a decision to invoke the Schedule 7 power in a case of this kind. It follows that, subject to the point raised by the fourth ground of appeal, the decision to exercise the power was proportionate on the facts of this case.

So that there’s no mistake about his conclusion, Lord Dyson says at para. 118—

For the reasons that I have given, I would hold that the exercise of the Schedule 7 stop power in relation to Mr Miranda on 18 August 2013 was lawful … I would, therefore, dismiss the appeal in so far as it relates to the exercise of the stop power in this case.

Lord Dyson has of course made this ruling in the Court of Appeal, in judicial review proceedings brought by David Miranda after he was stopped. But, remember, as part of his reasoning on the “incompatibility” issue Lord Dyson also ruled (para. 113) that—

the possibility of judicial review proceedings to challenge the rationality, proportionality and good faith of a decision to interfere with freedom of expression in cases involving journalistic material cases does not afford an adequate safeguard.

If Lord Dyson is right that judicial review is inadequate, and cannot sufficiently protect journalistic material, then it cannot protect it in this case; Lord Dyson’s own ruling that questioning Miranda was lawful must be inadequate to satisfy human rights law. Without prior independent authorisation Miranda’s questioning can’t have been “prescribed by law”, and so must have breached the article 10 right to free expression. Lord Dyson could not possibly have “cured” that breach today.

The concept under the Human Rights Act 1998 that legislation may in itself be incompatible with a Convention right is a radical one: it means that the legislation necessarily and systematically causes breaches of human rights. Conversely, if not every use of a piece of legislation breaches human rights, then it is compatible with those rights. As Lady Hale put it in a very different context in 2005 in MH v. Health Secretary (para. 32) —

the means exist of operating [the legislation] in a way which is compatible with the patient’s rights. It follows that the section itself cannot be incompatible, although the action or inaction of the authorities under it may be so.

The Human Rights Act forces judges to make a choice. Either a piece of legislation is in principle compatible with human rights, in which case its use in particular cases may still breach rights (and so be unlawful); or it’s incompatible with those rights in principle, in which case its use in every case will breach rights (and, in an apparent paradox, will therefore be lawful). You can’t have it both ways. You can’t hold the questioning of David Miranda compatible with human rights if you also think the legislation it was done under is not.

Lord Dyson might have ruled that Miranda’s questioning was lawful because the legislation is incompatible: an idea that seems counterintuitive but which follows necessarily from section 3(2)(b) and section 4(6) of the Human Rights Act. This (at first blush odd) rule is what preserves Parliament’s ability to make laws regardless of human rights. Had he done that, today’s appeal judgment would have made sense.

But that was not Lord Dyson’s approach. He held Miranda’s questioning lawful because proportionate and compatible with free expression. It’s a conclusion that’s unfortunately contradicted by the declaration of incompatibility in respect of the Terrorism Act itself.

How can this have been got so wrong? It’s worth noting that there’s little mention in the judgment of the Human Rights Act. I suspect the Court of Appeal has lost sight of the framework it lays down and has not gone through the necessary steps, before moving to a declaration, of considering whether it must strain the interpretation of Schedule 7 so as to render it rights-compatible. It may also be that focusing narowly on the grounds of appeal (the grounds relating to the detention emphasised proportionality while the ground relating to the legislation emphasised “legality”) has produced a “trees not wood” effect, the court failing to consider the legality (in the human rights “prescribed by law” sense) of the questioning in spite of its importance as regards the legislation.

However it’s happened, in my view this is a legally unsustainable ruling: it must surely be addressed and corrected by the Supreme Court. If David Miranda’s questioning complied with human rights, then so does the legislation it was done under; if on the other hand that legislation is incompatible with his rights, then so was his questioning.

2016-01-19T22:38:35+00:00Tags: , , , , |

The strange, slow death of the criminal courts charge

December 7 2015

The criminal courts charge is, or was, one of the less well thought-through criminal justice reforms of recent years. Since April this year, courts have had a duty under section 21A of the Prosecution of Offences Act 1985 to impose a fixed charge “in respect of relevant court costs” on those convicted of offences.

When I say “fixed”, I mean it: regulations set out in a table the amount courts must charge, regardless of the convicted defendant’s means. Notably, the charge for being found guilty after a trial (e.g. £520 for a minor offence in the Magistrates’ Court) was much more than for pleading guilty (£150)—a situation that risked pressurising poor defendants into pleading guilty solely to cut their losses. That’s obviously undesirable, and raises questions about the fairness of trials in our courts. For that reason among others the Commons Justice Committee last month recommended the early abolition of the charge. The new Lord Chancellor Michael Gove’s decision to do just that has been broadly and warmly welcomed.

But it’s an odd sort of “abolition”—for two reasons.

First, the regulations “abolishing” the charge don’t quite abolish it. The Justice Committee had said (para. 38 of its report)

the statutory provisions governing the charge, by requiring the Lord Chancellor to make provision for a charge rather than simply empowering him to do so … make it impossible to abolish it without primary legislation to repeal Part 2A of the Prosecution of Offences Act 1985. … Pending any such repeal a similar effect could be achieved by … replacing the Prosecution of Offences Act 1985 (Criminal Courts Charge) Regulations 2015 with new regulations setting out radically reduced levels of charge …

I’m not sure it’s quite right to say the Act requires the Lord Chancellor to set amounts for the charge. But it certainly assumes he will. Section 21A(1) of the 1985 Act says a court

must … order a person convicted of an offence to pay a charge in respect of relevant court costs

and section 21C says

A charge ordered to be paid under section 21A must be of an amount specified by the Lord Chancellor by regulations.

So courts must impose these charges, by law; but they must do so in amounts set by the Lord Chancellor.

Repealing these provisions would have taken some Parliamentary time, and required a bill with its attendant debate; something ministers seem increasingly unkeen on. It’d also have been mildly embarrassing. To be fair to the government, it would have meant delay in ending the charge.

So Michael Gove’s lawyers have come up with a quick and dirty fix. The new regulations, by omitting the Schedule containing the table mentioned earlier, just delete the amount of any charge courts must impose. As of Christmas Eve, an Act of Parliament will still on its face require courts to impose charges; but it also requires them to do something impossible, since they “must” charge amounts that are no longer provided for. The charge will be like a buggy bit of code that forces a computer into a must/can’t, must/can’t loop. Judges and court legal advisers will have to patch the problem by forgetting about charges that can’t in practice be imposed.

Some have questioned whether Michael Gove actually has the legal power to do something as odd and messy as this. His department has drafted a memorandum explaining why it thinks he can (see para. 3.2; thanks to Rich Greenhill for drawing it to my attention). This is to ward off criticism from Parliament’s Joint Committee on Statutory Instruments or “JCSI”, which tells ministers off for any doubtful, unusual or unexpected use of legislative power.

Alternatively he could, as the Commons committee suggested, have reduced the charge in all cases to nothing. The disadvantage would have been that courts would have had to go through the farcical rigmarole of announcing and imposing a non-existent charge.

This, though, is not the only question about the charge’s odd death. There’s also a question about its timing. To understand it, we have to know some nerdy detail about how regulations are scrutinised by Parliament.

The amending regulations were made on December 2, laid before Parliament the following day, and come into force on Christmas Eve. The reason for that slight delay is something called the 21-day rule.

This is not a law, but a rule of Parliamentary practice according to which “negative resolution procedure” regulations like these (I’ll explain that another day) should generally be laid before Parliament, and sent to the JCSI, at least 21 days before they’re due to come into force. Michael Gove’s “abolition” regulations comply precisely with the 21-day rule, since they come into force on the 22nd day after they were laid before Parliament. Fine. Gove’s getting rid of this charge as soon as he can.

Except that he’s not. As I said, the 21-day rule is not law. Everyone expects government departments will have to breach it from time to time for various reasons, and in fact they often do. Here’s an example from earlier this year of DCLG explaining to the JCSI why some parking regulations had to breach it (see para. 3).

There would have been good reason for the Ministry of Justice to breach the 21-day rule: to spare from the criminal courts charge everyone convicted of an offence after the 2nd of December. If Michael Gove’s decided the charge is wrong, isn’t it wrong now? Yet today, courts were still imposing the charge. I saw several imposed at Westminister Magistrates’ Court.

The Ministry of Justice is at risk anyway of being told off by the JCSI for this odd use of powers. It should have gone in for a pound, and risked a telling-off for breach of the 21-day rule as well. Not that it was much of a risk. The charge will be so little lamented that I doubt there’d have been any fuss. For once, more ministerial high-handedness might have been welcome.

I don’t mind that the charge’s end is legally messy; but I do wonder why it’s not slightly quicker.

2015-12-07T20:51:20+00:00Tags: , , , |

Summary judgment: what the Supreme Court held in Sharland

October 14 2015

In Sharland v Sharland, the Supreme Court today granted the appeal of a woman who wanted to reopen her divorce settlement on the grounds of her husband’s fraud. Here’s my technical legal analysis, in a few words, of the precedent this case lays down to bind the courts in future.

RATIO—Where one of the parties to a divorce settlement was guilty of fraudulent non-disclosure, the court’s order should be set aside unless the fraudster proves it made no difference to the agreement and order. Fraud is distinguished from other material non-disclosure cases, where the burden of proving a “substantial difference” is on the aggrieved party as laid down in Livesey v Jenkins. (Lady Hale, with whom all six other Justices agreed, §§29-33);

OBITER—An application to set aside the order can and should be made to the family court rather than by way of appeal (Lady Hale, with whom all the Justices agreed, §42).

 
Here are explanations of the terms ratio, obiter and distinguished.

2015-10-14T14:26:08+00:00Tags: , , , |

Fraud unravels all: the Supreme Court divorce judgments in Sharland and Gohil

October 14 2015


The Supreme Court has today given two judgments (Sharland v Sharland, and Gohil v Gohil) about re-opening divorce settlements on the grounds of fraud. Sharland lays down a new test in cases involving fraud, which should mean more settlements are reopened in future.

Alison Sharland agreed a divorce settlement with her husband, who’d told the court he had no plans to float a company of which he owned about two-thirds. But then she realised that in truth, he was already preparing for an initial public offer—which made his shares more valuable than they’d seemed. The divorce judge found that he’d acted fraudulently, but refused to set aside the divorce settlement and hold a fresh hearing, because in fact the IPO had not gone ahead, and now seemed unlikely; so the court was unlikely to order a different settlement, after all. The Court of Appeal upheld that ruling (though Lord Justice Briggs dissented, saying in effect that “fraud unravels all”).

Varsha Gohil always thought her husband (who was a solicitor) was concealing his assets, but she reached a divorce settlement with him so as to achieve finality. Later, though, she went back to court alleging non-disclosure. Then her husband was charged with, and then convicted of, money laundering—and sentenced to ten years in prison. The judge set aside the divorce settlement, because he would probably have made a different order had he known of the fraud. But the Court of Appeal reversed this, saying the judge had applied the wrong approach, and relied on material obtained in the criminal case which (because of a separate Court of Appeal ruling) was not admissible evidence in the divorce.

The Supreme Court has allowed both women’s appeals today. In Sharland, in a unanimous judgment (all seven Justices agreeing with Lady Hale) the court held that Briggs LJ has been correct in the Court of Appeal. Fraud does indeed “unravel all”.

Where fraud is established, that in itself will normally mean a financial order on divorce should be set aside (paragraph 32 of the Sharland judgment). The only exception is where the fraudulent husband can satisfy the court that knowledge of the fraud would have made no difference either to his wife or the the court (para. 33).

This approach modifies the principles that apply in cases of innocent or negligent non-disclosure, laid down in the 1980s in Livesey v Jenkins. As Lady Hale said (§32),

a party who has practised deception with a view to a particular end, which has been attained by it, cannot be allowed to deny its materiality.

She went on (§35)—

The wife was entitled to re-open the case, when she might seek to negotiate a new settlement or a rehearing of her claims when all the relevant facts were known. Thus, in my view, Briggs LJ was also correct in the third reason that he gave for allowing the appeal. The wife had been deprived of a full and fair hearing of her claims.

It’s actually in the Gohil judgment that Lord Neuberger explains most clearly the legal importance of Lady Hale’s approach in Sharland (see §44 of Gohil).

If there had been … non-disclosure, but it had been accidental or negligent, the wife would also have had to establish that the effect of the non-disclosure was such that the 2004 order was substantially different from the order which would have been made (or agreed) if the husband had afforded proper disclosure—see per Lord Brandon in Livesey v Jenkins [1985] AC 424, 445. However, as the non-disclosure alleged by the wife in this case is said to be intentional, then, if there was such non-disclosure, the 2004 order should be set aside, unless the husband could satisfy the court that the 2004 order would have been agreed and made in any event—see per Lady Hale in Sharland v Sharland [2015] UKSC 60, paras 29-33.

In Gohil (again a unanimous judgment, all the Justices agreeing with Lord Wilson) the court agreed that the divorce judge, Mr Justice Moylan, had applied a wrong test—based on the Ladd v Marshall criteria for bringing fresh evidence in appeal. But Lord Wilson went on (para. 25 of the judgment)—

Separately, however, the judge conducted the correct exercise and held that it yielded the same conclusion … Moylan J did conduct a full fact-finding hearing and did find as a fact, no doubt on the balance of probabilities, that the husband had been guilty of non-disclosure. He also found–as to which there could be no live dispute–that the non-disclosure was “material” …

That last finding was of course unnecessary, applying Lady Hale’s new Sharland approach in fraud cases.

Nor was the Moylan J’s ruling entirely dependent on the inadmissible criminal evidence (§42)—

I conclude that, even if he had referred only to the evidence admissible before him, Moylan J would still properly have found the husband to have been guilty of material non-disclosure in 2004; that his order dated 25 September 2012 should therefore be reinstated; and that the wife’s claim for further capital provision should therefore proceed before him.

An interesting additional point in the judgment relates to recital 14 to the consent order giving effect to the divorce settlement, which said—

And upon it being recorded that the petitioner [wife] believes that the first respondent [husband] has not provided full and frank disclosure of his financial circumstances (although this is disputed by the first respondent); but is compromising her claims in the terms set out in this consent order despite this, in order to achieve finality.

This was obviously included by the husband’s lawyers to try to protect him from any later “comeback” from Mrs Gohil, Lord Wilson said. But the husband had a duty to make full and frank disclosure to the court—a duty that the parties could not wish away by any agreement. Lord Wilson concluded that (§22)

In the present context, namely that of a financial order in divorce proceedings, a form of words such as recital 14 has no legal effect.

In terms of procedure, both judgments strongly suggest (Gohil, §18; Sharland, §42) that applications to reopen divorce settlements on grounds of fraud should be made to the family court, which has power to set aside its own financial orders—and not by appeal.

2015-10-14T14:34:33+00:00Tags: , , , |

Pannick on the Reyaad Khan drone strike

September 17 2015

In the Times today Lord Pannick QC discusses the recently announced RAF drone strike that killed Reyaad Khan and another British “Islamic State” fighter.

He agrees with me that article 51 of the UN Charter permits defence against an imminent attack from a non-state organisation. A state, he writes

does not have to wait for the attack before taking action. The legality of pre-emptive self-defence, where necessary and proportionate, is recognised by international law.

On whether this strike was in fact necessary and proportionate, he says that depends on the nature and imminence of the threat; and seems to accept that there are limits on what detail the government can disclose. He says:

On the publicly available information, it is impossible to dispute the advice given by the attorney-general that, in substantive terms, the drone strike was a lawful response to a grave terrorist threat.

He suggests two safeguards, though. First,

The rule of law requires, as a minimum, a public statement of the general criteria to be applied in deciding on drone strikes, and the procedure to be followed in making such decisions. The government needs to publish such guidelines without further delay …

This seems to be a reasonable idea, though I’m not sure drone strikes per se are really what need to be covered. The issue here, surely, is the targeting of lethal force on a specific individual by any means, where this is thought necessary for British self-defence outside an existing theatre of armed conflict. Not all drone strikes (since they may not involve the targeting of individuals at all), and not just drone strikes.

I’m more doubtful about Pannick’s second proposal. He writes—

There is a strong argument that the rule of law requires that before a drone strike designed to kill a terrorist target takes place, the necessity and proportionality must be approved not just by politicians and generals, but also by an independent judicial authority, albeit that such a review may need to occur in very urgent circumstances and so only limited scrutiny is possible.

First, I wonder why he thinks this applies in this sort of case and not to every choice of target by British forces, where people are likely to die—including civilians. Second, I wonder if it’s realistic. Whether a strike is proportionate depends on the extent of the risk to civilians, which is something that might have to be judged in a matter of a very few minutes.

Third, I wonder whether his idea would satisfy anyone, really. If people find it hard to trust the government on this without seeing all the Attorney General’s advice, why should they trust this judge without seeing his or her full on-the-spot ruling? Finally, I wonder if it’s even appropriate. Aren’t judgements like this—if and when military force should be used to defend us—what we have ministers and Prime Ministers for, rather than judges?

2015-09-17T16:46:12+00:00Tags: , , , , , |

Stop the redestruction of Inner Temple Library!

September 16 2015

Photo published with permission of Inner Temple LibraryThe last time Inner Temple’s library was wrecked, it was Hitler’s bombs that did it. On the night of the 10th—11th of May 1941, London faced the most devastating attack of the Blitz. That night, the House of Commons chamber was left a smoking shell. St Clement’s Dane’s, on the Strand, was gutted. Much of Fleet Street was on fire. And according to Clare Rider,

Temple Church and almost everything in it, including stained glass, altar, reredos, organ, pews, books and pulpit, were devastated … fires raged through the Hall, Library, Master’s House, Crown Office Row and what remained of Harcourt Buildings.

… fires continued to burn throughout the following day. Only when they were finally extinguished could the extent of the damage to the Inner Temple buildings be assessed. It must have been a depressing sight.

After Hitler was dead, our civilisation and the rule of law saved, it was decided to build a new library

worthy of the site and the historical importance of the Inn

as Inner Temple put it in 1947. The new library, like all the reconstruction work, was funded mainly by the public through the War Damage Commission. Clare Rider tells us that

The Library was opened by the Treasurer, Sir Patrick Spence, in a formal ceremony on 21st April 1958 attended by the Lord Chancellor [David Maxwell Fyfe, Viscount Kilmuir—Carl]. The Law Times of 2nd May recorded that ‘those who were present on the occasion cannot fail to be impressed both with its general design and with the workmanship which has been bestowed on its furnishings and equipment’ …

Nor can anyone fail to be impressed by the library today. It allows barristers and students to do legal research work of the highest standard, and provides services to barristers outside London. I was there only last week, doing international law research I could do nowhere else. It’s also a fine interior that deserves to be left alone.

Yet now, fifty-seven years after it was built, Inner Temple library faces a new threat—this time, shockingly, from Inner Temple itself. The plan is to spend £16 million and close the library for 18 months in order to get rid of five of its rooms, together with its fine gallery; to install a depressing plaster ceiling to lour over what remains; to take away half the spaces for readers to sit and work, and to remove 25,000 books.

The books really matter, and the space really matters, as David Allen Green explains in his very good piece about this plan. To think none of it’s important in the digital age is wrong, and glib.

The idea’s to make way for education and training rooms and a 120-seat “auditorium” to be hired out at a profit. Private Eye (No. 1400) said about the plan—

In a rush to monetise their prime slice of City real estate, scheming elders at the Honourable Society of the Inner Temple are pushing ahead with plans to create a lucrative commercial training complex – even if it means taking the sledgehammer to one of the oldest libraries in London.

Astonishingly, according to a submission drafted by the Inn’s Library Committee this summer, this proposal hasn’t even been the subject of a proper business plan assessing the likely income from the new facilities. How can Inner Temple’s governing benchers even think of doing it?

How could anyone do it? On a speculative punt, it would spoil a permanent professional and educational asset and a true centre of excellence—and instead assemble something that’ll be “state of the art” only on the day it opens. That a library might be intentionally damaged in the interests of “education and training” makes “education and training” a sinister phrase. The library is the best education and training resource the Inn will ever have, and should not be cut down at all. It should be enhanced and preserved.

Is it even intended that any revenue the auditorium might earn should be paid to the public purse? It ought to be, since any profit would be made from the destruction of an asset public money bought for Inner Temple.

This goes beyond the interests of the Inner Temple, or of the Bar. To wreck this outstanding library would not merely be deliberate vandalism. Nor would it just be anti-professional, anti-intellectual and anti-educational. It would insult the people, who built it, and this country’s history. What Hitler destroyed and the public rebuilt should endure.

If you’re not a barrister, you can visit the library this weekend from 11 am to 4.30. It may be your last chance to see it as it was meant to be. Please read about the campaign to save the library, please sign the petition against this horrible plan—and if you have any other influence, please exert it.

2015-09-16T13:48:45+00:00Tags: |
Copyright 2022 Carl Gardner. Site by Samsara
Go to Top