The conviction of Lucy Letby – miscarriage of justice? ✎

Earlier this week, I was reading “Lucy Letby: Serial killer or a miscarriage of justice?” by Sarah Knapton, Martin Evans, Sophie Barnes, and Will Bolton (Daily Telegraph).

It argues that the conviction of neonatal nurse Lucy Letby may have been a miscarriage of justice.

She was convicted on largely circumstantial evidence and no direct evidence and with no (discernible?) motive. 

Nobody saw Letby harming a child, and the coroner didn’t find “foul play” in any of the deaths.

Also, it seems that the statistical evidence used was a bit questionable:

On the other hand, there is damning evidence against Lucy Letby. There is a problem with insulin. There’s no evidence this could have been “accidental”. And there is no reason other than insulin being purposefully administered, and no reason for it to have been done other than to poison. It would be attempted murder because it was likely to have been fatal if not corrected. She was also caught multiple times standing over babies as they died, without doing anything to help.

It doesn’t mean Letby didn't do it, it's not very clear how they can convict on the basis they have.

The new Home Secretary may have to order a review.

The US Supreme Court’s ruling on the Presidential qualified immunity ✎

This blog post reflects my own thoughts on the Supreme Court decision on the question of presidential immunity, Trump v United States. 

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The SC recognised a qualified immunity. In summary, Justice Roberts’s majority opinion held that:

• “Official acts” stemming from core Article II powers carry an absolute immunity from prosecution.
• “Official acts” within the “outer ambit of executive authority” carry a “presumption of immunity”. 
• The burden to be discharged by the prosecution.
• Prosecution would need to prove that the action would pose no “dangers of intrusion on the authority and functions of the Executive Branch”. (A v. high burden).
• The above immunities are recognised because of the “compelling public interest in fair and effective law enforcement” to “safeguard the independence and effective functioning of the Executive Branch, and to enable the President to carry out his constitutional duties without undue caution.”
• Former presidents have no immunity for private misconduct.
• The courts may not inquire into the President’s motives. (a v. important point).
• With respect to whether an action is official, the question is “which of [his] innumerable ‘functions’ encompassed a particular action”. 
• The SC’s approach seems to be a negative test of whether relevant action is “not manifestly or palpably beyond [his] authority”.
  

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The originalist position: conceptualising “immunity” in Article II of the Constitution

For the “originalist”, it’s not the job of the Supreme Court to imagine things as being in the Constitution merely to avoid some possibly unattractive consequences. The Supreme Court’s proper function is not to “solve” society’s problems (or, rather, the perceived problems). The Supreme Court’s job is to look at what is and what is not in the Constitution, and apply it to the cases before them — irrespective of whether it “fixes” the problem. If there is a society problem, then it is the responsibility of Congress as the democratic legislative organ to enact legislation (or a constitutional amendment proposal) to address that societal problem. 

If there’s a provision in the Constitution that makes it clear that immunity from criminal prosecution was to be granted to former presidents of the United States, then the Court should identify it and rule accordingly.

However, the concept of “immunity” per se doesn’t arise in Article II of the Constitution.

To that extent, I liked Justice Barrett’s position. She said:

The Court describes the President’s constitutional protection from certain prosecutions as an “immunity.” As I see it, that term is shorthand for two propositions: The President can challenge the constitutionality of a criminal statute as applied to official acts alleged in the indictment, and he can obtain interlocutory review of the trial court’s ruling.

Instead of searching for “immunity” for Presidential “official acts”; instead she focused on the ambit of Presidential actions which can be subject to criminal prosecution. In other words, it asks whether Congress is constitutionally void from taking certain actions vis-a-vis the president’s nominal act.

Therefore, I think the better argument would be that the President doesn’t have “immunity” per se. The “immunity” simply describes a state of affairs that arises whenever he acts within his constitutional authority. If the President is exercising the authority vested in his office by the Constitution, no outside body has jurisdiction to adjudicate his actions.

Thereafter, this would entail, as Justice Barrett argued, a preliminary determination by the court whether — as a matter of law, not fact — the indictment properly alleges conduct outside the President’s scope of constitutional authority. The sufficiency of an indictment would be a legal question.

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Beyond originalism: the implicit “separation of powers” principles

On the other hand, I do think there might be something missing in the argument that there is no “immunity” articulated in the Constitution.

It seems obvious to me that when the President undertakes his “official acts”, he cannot necessarily be prosecuted for them. Since all executive power is vested in the executive , Congress cannot make a lawful exercise of executive power illegal. Congress cannot pass a law which limits the constitution’s vesting of executive power in the presidency. To do so would violate the separation of powers and would amount to a direct attack on the President’s Article II powers. Acts undertaken pursuant to his Article II powers must be immune from prosecution. Otherwise Article II “grants” nothing.

On a tangential point, as noted above, the Supreme Court expressly ruled that the President’s motives were (in English legalese) “non-justiciable”. This is for the obvious reason that the determination of a “motive” would need to be established by evidence; and secondly, that the judiciary are ill-equipped (notwithstanding traditional separation of powers reasons) to divine the whether a motive was indeed improper. It would amount to the Court substituting its own opinion for that of the primary decision-maker on questions of expediency. This is recognised in English law as the common-sense apportionment of responsibilities in the constitution (Secretary of State for the Home Department v Rehman [2003] 1 AC 153). Lord Hoffmann wrote:

It is not only that the executive has access to special information and expertise in these matters. It is also that such decisions, with serious potential results for the community, require a legitimacy which can be conferred only by entrusting them to persons responsible to the community through the democratic process. If the people are to accept the consequences of such decisions, they must be made by persons whom the people have elected and whom they can remove. (emphasis added)

At any rate, it seems to me that we are drawing inferences from the manner in which the government was established — which may not have been spelled out in specific words. It is not to say that the Constitution is a “living document” and rights arise from its various penumbras etc. Rather, we are talking about fundamental concepts and principles that govern relations between the branches of government.

The Constitution clothes the President with immense powers. That power cannot be exercised meaningfully (& without fear) if it can be second guessed by lawyers at the Department of Justice after the President finishes his term. This doesn’t make the President “above the law”. Rather, it protects the effective functioning of the government which, as Justice Roberts argued, was a “public interest” of the highest importance. 

In my view, the presidency would probably never be the same if immunity (properly defined) is curtailed, even slightly. We have seen the consequences of the reduction in the police’s qualified immunity in the US ... and they become risk-averse. And, apropos the state of US politics, we all know that once one side can “get” the President successfully, the other side will make sure to take advantage just as soon as they retake power.

Justice Robert’s rationale thus stems from (1) the structure of the Constitution and the (2) effective and proper functioning of the Executive (which may otherwise be impeded).

Although imperfect, if a President cannot be impeached for conduct while in office, it is a very slippery slope to believe that he can then be prosecuted for the same conduct after he leaves office. Once a President is out of office, he is no longer subject to a qualified immunity. For the acts undertaken while in office, the “remedy” was impeachment. Since an impeachment is a divestiture of official power of a bad actor, I don’t see why they cannot be prosecuted afterwards too. Even so, since his successor becomes functionally immune, he can cause the predecessor to be prosecuted for acts taken while in office — whether or not those acts were legitimately criminal. Impeachment must remain the proper remedy for Presidential misbehaviour — its ineffectiveness, so far, notwithstanding.

In some respect, it may be argued that there is no need for a specific immunity clause because it is obvious from the impeachment clause that it is the default “remedy”. Permitting otherwise would subject Presidential authority to an ever-present risk of prosecution in a manner not authorised in the Constitution. 

Finally, a question comes up about whether it is justified to extend a presumed immunity for actions within the “outer ambit of executive authority”. I suspect this is because the President’s “official actions” are much larger and broader and may entail prerogatives established under the Constitution and other laws. I think the Supreme Court was probably correct to recognise this, and attach a presumption. 

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Interesting column by Randy E Barnett at the WSJ on the eroding originalism of recent Supreme Court judgments. He noted that the judgement of Trump v United States was a departure from originalism.

The Post Office scandal – biggest miscarriage of justice in British history ✎

There is a huge scandal in Britain at the moment. 

In 2019, the High Court ruled that the Post Office's Fujitsu's Horizon IT system contained inherent bugs, glitches and errors which had erroneously flagged up account shortfalls. However, by this point, the Post Office had forced at least 4,000 sub-postmasters – the individuals running local branches – to make repayments based on this data.

The Post Office, their investigators, and Fujitsu employees, essentially lied to cover up the widespread problems with Horizon. This cover up was instrumental in this miscarriages of justice which resulted in malicious wrongful convictions and resultant fatalities, and ruination of lives. There probably needs to be a criminal prosecution of certain Post Office management and relevant Fujitsu individuals. They knowingly instigated vexatious litigation, misled the courts, and appropriated serious sums of money from the sub-postmasters who 'repaid' money that was never missing. Then, they received bonuses on the money they stole and the tax they reclaimed. (More info: BBC News)

The government is trying to pass the Post Office exoneration bill to overturn these convictions.

The problem with a legislative approach is as follows: 

• It creates two kinds of precedents:
• When the next scandal comes along, there will be a political clamour for 'something to be seen to be done'. If the government of the day simply refuses, and leaves it for the courts to correct; then inconsistency will lead to accusations of favouritism. 
• It gives government latitude to interfere by fiat with other things best left to the courts, e.g. declaring that an landlocked African country was safe when it was not. Other examples could follow in due course. What if, as opposed to exoneration; a future Parliament passes a law that maligns a given group as being 'guilty' of some crime? 
• There is also a rule of law problem with laws that have retrospective effect. It would entail changing the law of, let's say, assault which would lead to previous convictions being reassessed. The rule of law requires that legislation doesn't move in that direction.
• Some of the sub-postmasters may be guilty. What if, in due course, an investigation reveals that around 10% of all blanket-acquittals were actually guilty? It would taint the acquittal of the 90%.
• Some innocent defendants might fall through the net, depending on how the Act is drafted.

What is really needed is for the government to ensure resources allow these cases to be heard quickly by the Court of Criminal Appeal. Whether via the Criminal Cases Review Commission (which refers cases back to the Court of Appeal) or through a special legal unit that acts as solicitors to the convicted postal workers, or a combination of the both, is a matter of detail. The Criminal Cases Review Commission has been chronically under-resourced. Presently, without their prior approval, none of these old convictions can be sent to the Court of Criminal Appeal. 

However, judges can be remarkably innovative when the need arises. I wouldn't be surprised if a vehicle arises (e.g. an individual appeal) to take the findings from the Horizon Inquiry and make a generally binding decision; namely, that postmaster convictions based on Horizon evidence were fundamentally flawed and unsafe, and that an individual conviction could only stand if the case was re-prosecuted.

I was struck by a comment from Nicholas Cooke KC in an interesting article in the Guardian:

I am very concerned that the proposed legislation will have the effect of covering up the extent to which failings in the criminal justice system allowed this appalling miscarriage of justice to occur.

If this is swept under the carpet, the courts won't adjust to account for this blind spot. Perhaps a judicial direction to a jury?

It is far preferable that court cases are dealt with by the courts.

A brief note on the Shamima Begum appeal ✎

This is a brief note on the Shamima Begum appeal currently being heard in the Court of Appeal.

I briefly discuss the recent & notable Supreme Court judgment (which I agree with) and then turn to the present appeal. I end with some of my thoughts. When the Court of Appeal gives its ruling, I'd like to compare.

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The 2021 Supreme Court decision

The original Supreme Court decision concerned the validity of the removal of Ms Begum's citizenship when she decided to leave the UK to join Isis in Syria. There is a general rule from treaty law that you cannot make someone stateless; and, in this case, Ms Begum would not be, as a matter of fact, stateless.

The crux of the SC's reasoning is that the deprivation of British citizenship – notwithstanding the above qualification – is a classic issue of national security. In our constitution, this falls under the prerogative of Parliament and, in turn, the discretion accorded by it to its governments' ministers. Foreign policy and national security have been areas of policy where the courts have traditionally been v. reluctant (on the grounds of constitutional legitimacy and authority) to disturb the decisions of ministers. Safety of the public is a legitimate policy area to which ministers must be accorded a latitude (and to which they are answerable to Parliament).

A similar case that, I think, is useful is R (Carlile) v Secretary of State for the Home Department [2014] UKSC 60. It concerned a challenge to the decision to refuse to allow Ms Maryam Rajavi – a lady with close links to a proscribed terrorist group – to enter the UK. In that case, Lord Sumption's dictum was instructive: 

We have no experience and no material which could justify us in rejecting the Foreign Office assessment in favour of a more optimistic assessment of our own. To do so would not only usurp the proper function of the Secretary of State. It would be contrary to long established principle which this court has repeatedly and recently reaffirmed. It would step beyond the proper function of a court of review. And it would involve rejecting by far the strongest and best qualified evidence before us. In my opinion it would be a wholly inappropriate course for us to take

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The present appeal

The present appeal pivots the argument in a different direction. 

Instead of challenging what the former Home Secretary did - it challenges what he didn't do.

The argument is that Mr Javid breached a human rights obligation; namely, to determine whether Ms Begum was a victim of trafficking before stripping her of her British citizenship. Mr Javid is supposed to have investigated whether the state had failed in its duty to protect Ms Begum when she travelled to Syria in 2015. This, in turn, rendered the decision to revoke her citizenship unlawful.

The original judgment was delivered by Mr Justice Jay of the Special Immigration Appeals Commission. The most important parts of the judgment are:

1. From para. 248–261, the following two conclusions were drawn.
1. Parliament did not expressly require - as a mandatory consideration - that the Home Secretary take into account credible suspicion of trafficking.
2. The Home Secretary's power is broadly defined and its primary focuses is national security and not grooming/trafficking.
2. The court could not substitute its own view on whether Ms Begum was trafficked for the Home Secretary's view that she had travelled voluntarily into Syria to join Isis, which was integral part of the overall national security assessment.
3. The Commission did think that there was credible suspicion that Ms Begum had been trafficked.

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My thoughts

As a matter of law, I find Jay J's logic quite persuasive and I agree with him.

Firstly, Section 40 of the British Nationality Act 1981 is indeed v. broadly defined and focuses on a single test (namely: "conducive to the public good"). I have highlighted the relevant section. This is done deliberately and affords the minister a broad discretion to take account of a myriad factors in the decision-making process. It does not make trafficking a qualifying condition (which is essentially what Samantha Knights KC is trying to argue in the Court of Appeal - see article below).

Secondly, the framing of section 40 in such a way as to make deprivation of citizenship conditional on the trafficking analysis fails, as Jay J argued, to take account of "questions of fact and degree" (para. 257). Ms Begum could be, in some respects, trafficked - but, in other respects, she actively and knowingly went to Syria to join Isis. It's not a black-and-white issue, as Sir James Eadie argued. And once we make trafficking an all-or-nothing assessment; it seems to me that the approach rapidly veers away from the clear intent of Parliament in the statute. (Indeed, as established in Begum and Carlile (and Bank Mellat), not all rights have equal weight; and the executive are not necessarily required to treat all considerations to the same standard.)

Thirdly, as established in Carlile, the courts are not apt to substitute a decision made by its constitutional maker for one which the court finds preferable. The courts do not have the contingent expertise to enable the required assessment of risks vis-a-vis national security and public safety. Upon on what basis can the court rule that the Mr Javid came to the wrong decision?

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From today's paper:

Lady Justice Simler, the Supreme Court and diversity ✎

Lady Justice Simler has been appointed to the Supreme Court.

It was accompanied, as the FT has written, by a complaint of sorts from the Supreme Court about its diversity:

The Supreme Court acknowledged criticisms over the UK judiciary’s record on diversity as it announced Simler’s appointment. She is only the fifth female justice appointed since the UK’s top court was set up in its current form in 2009.
"We know that certain people, including women, black, Asian, and other ethnic minority groups, and disabled lawyers continue to be under-represented in the judiciary," the Supreme Court said.
"Progress is being made but more needs to be done to increase the pace of change," it added.

I think this is misguided for the following reasons:

1. Appointment to the Supreme Court is not a normal job - like an airline pilot etc. It is an extremely influential job and there is a v. limited pool of candidates because you need to have been an outstanding practitioner for 25+ years. You cannot call up some recruitment firm to send over some diverse candidates to virtue signal to the present cultural zeitgeist.
2. Our House of Lords/Supreme Court has, until recently, come from people born no later than 1962. The youngest Justice is Lord Sales. During that historical period, the population of England/Wales/Scotland has been almost unanimously white. Thus, it is no surprise that the Law Lords and Justices have thus been unanimously white. Also, no surprise that men - from that era - were more willing than women to diminish their family and social lives for career success.
3. Women were excluded in the past in the law and things changed as the decades rolled. Women today can compete on an equal footing with men. Lady Hale, Lady Arden, Lady Black and Lady Rose all attest to this. Should a female judge from the Court of Appeal apply for a Supreme Court position, their application would be treated fairly today. As I mentioned above, there can be no discrimination at the JAC. The Supreme Court's own site highlights that appointment is on merit.
4. A selection criteria focused on 'diversity' is illegal under The Equality Act 2010. I also think immoral. Diversity has no relevance to merit.
5. Lastly, we don't want to be in a situation where, as an example, a black woman sitting on the Supreme Court might ask herself "Am I here on merit, or am I here to fill a quota?".

The Hamas Oct-7 attack ✎

Israel at war

I would like to post about the shocking and horrific attack Israel has recently sustained; and a broader note on the law regarding Israel’s war.

I think we should be under no illusion as to why the terrorists of Hamas suddenly decided to wage an all-round offensive against Israel. And the word ‘offensive’ doesn’t quite capture the evil and carnage visited on ordinary Israelis. How anyone can riddle babies with bullets, burn young people alive in their cars etc. is beyond my comprehension.

I am v. glad that the British and American governments have been steadfast in their support of the Israelis in the face of this barbarism. Especially since we now know that Tehran were complicit in Hamas’s plan and were probably seeking to pivot a Middle Eastern conflagration. 

Today, the reality is that Israel is at war.

Richard Kemp (see below) has recently argued that the war must be fought with overwhelming force against Hamas - or risk embroiling into an interminable war with more dead bodies on either side. That seems correct to me. What will prove problematic and thorny is how Israel responds to this appalling act of aggression.

The laws of war

Under the norms and rules that govern warfare in international law (the law of armed conflict), states have a right of self-defence against an armed attack; and, accordingly, Israel has a broad military latitude. This is qualified by the need for force to be necessary and proportionate. Proportionality entails the defending state deploying as much force as is necessary to neutralise a threat – and no more. The unprecedented scale and nature of Hamas’s attack means that Israel easily satisfies that broad discretion. The question would be the proportionality.

The crux of the problem is how do you fight an organised and monstrous terrorist campaign seeking to butcher and rape civilians and murder babies – and, most notably, use the Gaza citizens as a veritable human shield. How does a modern-day democracy, like Israel, respond to an opportunist cynical attacker that won’t fight in an open battlefield?

There is a world of difference between murdering civilians, and parading their defiled corpses through town; and targeting terrorist cells (and necessarily inflicting collateral damage). The difference is the intent; and this is recognised in law. For example, the Obama administration had to use the same principle with its drone strike program when targeting terrorists (e.g. Anwar al-Awlaki). Ordinary citizens – incl. many in numbers – can be killed if a military operation is necessary and proportionate with reference to the military advantage anticipated.

Israel’s missile targeting is lawful if it meets the test (in the above paragraph) which is measured against the serious and pressing threat which is capable of striking most of Israel (as the Hamas’s large rocket force is evidently capable of doing).

To my mind, the heavy bombardments of Gaza represents a shift in military strategy. In the former military engagements, the bombardments of Gaza ended-up with the terrorist group remaining in power. I suspect Mr Netanyahu has opted to destroy Hamas’s military and governing structure through targeting whole Gaza neighbourhoods - as opposed to individual buildings. Hence, the warnings have changed.

This may sound and feel like Dresden during WWII; but I am not sure that Israel has much meaningful alternative. Hamas have always operated in civilian buildings. The rules of war - that most people are familiar with - were not designed to deal with military engagement in urban cities and against a ruthless adversary. For me, it was very revealing that after Israel called on the 1.1m Gaza denizens to move South; Hamas then immediately rebuked those civilians and urged them to ignore the call. Indeed, the warning itself can be tricky. Traditionally, the IDF used to give prior warning for certain strikes - but that can only come at the expense of losing the military advantage of the surprise which may be critical. 

People have been criticising the severity of the blockade and the turning-off power in certain parts of the Gaza Strip. But the object is to free hostages that have been kidnaped, and of course Israel is at war. The electricity has been cut in areas clearly controlled by Hamas (i.e. not the evacuation zone), and to which they (Hamas) will use it (electricity) to further attacks on Israel. Indeed, Israel has also been negotiating certain supplies entering via Egypt at the Rafah crossing. The blockade and power cut - which can feel excessive - can probably be justified on the above analysis. Blockades are not a novelty in wars.

At the end of the day, Israel is at war and is entitled to eliminate Hamas. The problem is that the military cannot veer towards revenge. US Senator Lindsey Graham has been quoted in yesterday’s paper as saying that Israel should “raze” Gaza to the ground. This is ridiculous nonsense which would should embarrass any democratic constitution. It’s what separates a military structure in a democracy from barbarism, and it is precisely why the Geneva Conventions were introduced. 

Notwithstanding the absolute horror at the recent slaughter in Israel, I really do feel for the ordinary Palestinians too, and their terrifying situation. Hamas are maniacs and will (and indeed, do) easily kill their fellow Gazans who disobey their orders.

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Richard Kemp in The Daily Telegraph:

“Tunnelling and a ban on electronic comms gave Hamas advantage”, in The Daily Telegraph.

The miscarriages of justice compensation scheme: Andrew Malkinson ✎

Recently, the Court of Appeal overturned the conviction of Mr Malkinson. This is a shocking miscarriage of justice. Holroyd LJ found DNA evidence pointed to someone else, but also that "crucial material" was not disclosed at the time of his trial to the defence. It also seems forensics were not conducted! I look forward to the full inquiry.

At any rate, I've recently caught this article about poor Mr Malkinson having to be further humiliated vis-a-vis compensation for unlawful imprisonment. 

You might have thought this was a wind-up. I checked online, and it's quite true.

Until April 2006, in England and Wales, there were two compensation schemes for victims of miscarriages of justice: a discretionary scheme and a statutory scheme. The discretionary scheme was abolished, and the statutory scheme grants the Justice Secretary a discretion to pay compensation to a wrongly convicted person if “new or newly discovered fact shows beyond reasonable doubt that there has been a miscarriage of justice”. 

Should the Secretary of State believe that an applicant is eligible for compensation under section 133, the amount actually awarded is determined by an independent assessor. Deductions are made for conduct that contributed to the conviction, his criminal record and “saved living expenses”. Moreover, the amount won't be particularly large; capped at £1m and calculated loosely on the concept of projected loss of earnings, minus saved living expense and some amount of the compensation reflecting the imprisonment itself.

This is staggering, frankly derisory. There is no automatic right to anything and the loss of earnings is capped at some concept of placing the recipient in the position in respect of earned money. It's not really compensation at all; it's just wages. And the fact that any amount can be deducted as "saved living costs" – when that person has been forcibly imprisoned against their will – is almost a parody, a sickening insult.

To my mind, it should not be about "compensation" for the years lost in accountant-speak; but rather it should permit the victim to move on, compensate the distress and wasted years and opportunities. It should be about the full freedom and comforts of which they were denied for so long.

Israel's sensible judicial reforms – strengthening Parliamentary sovereignty ✎

Few issues are as thorny as the politics of the Supreme Court; and some interesting legal developments in Israel are worth a blog post. Their Knesset (parliament) adopted a controversial law to limit the Supreme Court's remit (including its ability to overrule government action on the grounds of unreasonableness).

To my mind, these modest reforms seem sensible and probably overdue for Israeli democracy.

I discuss the four important aspects.

1. Judicial review

Like the UK, Israel has an unwritten constitution. It's based on the principle of Parliamentary sovereignty, not checks-and-balances. The body of law passed by the UK Parliament is considered its constitution. What is very striking about the Israeli Supreme Court is the warped equilibrium of power, for example when compared to the UK Supreme Court. Unlike the UK, Israel is still a relatively nascent state and has not really had its equivalent of the Glorious Revolution of 1688. Rather than centuries, it has had decades. During which, the Israeli judiciary have arrogated extraordinary power to themselves in a manner that strikes me as being incomparable with most liberal-democratic courts. 

In Israel, in the 1990s, the Supreme Court underwent a "judicial revolution" and arrogated to itself the power to strike down legislation (The Economist summary). The court rationalised this power as being conferred upon it by the "Basic Law" (which requires a majority and which can be overridden).

However, in the UK, we have the enrolled bill rule. Famous cases (e.g. British Railways v Pickin) have established that no English court may question the validity of an Act of Parliament. All that an English judge can do is to observe that an Act of Parliament has passed the various stages; and then interpret and apply the law. The Human Rights Act 1998 gives the courts a discretion to issue a declaration of incompatibility – but, beyond that, the courts cannot impugn primary law. In contrast, the Israeli Supreme Court would decide what constituted the "Basic Law" implicitly by deeming the primary law unconstitutional. This strikes me as a reversal of Parliamentary sovereignty, and would be anathema to any British judge. 

The proposed changes to the Israeli courts are rather generous to them. They propose to endow the courts with the power to 'judicial review' legislation passed by Knesset if: firstly, it is before a full bench and, secondly, there is a threshold of 80% to rule in favour of invalidation. 

This is significant because it relates to the concept of legitimacy. Modern democratic constitutions derive their legitimacy from the people who elect them. This is important because representative politics gives voice to disparate interests (in policy trade-offs and debates) which affirms the willingness of the electorate to comply with the resultant laws. It is the collective instinct we have to accept the inherent authority of institutions and to have a political process that can best wrestle the conflicting interests and opinions.

An expansive judiciary strikes at the heart of the legitimacy of the law-making institutions in a deep and profound sense. Indeed, every democracy has to rebuff with the problem of idealists imposing beliefs on others. Judges are not constitutionally accountable to the electorate and do not have to weigh the various interests and seek compromises. 

Democracy is a sophisticated political relationship that requires – not a set of beliefs but – a disciplined ways of thinking as to who is the most qualified to have the final say in our constitution; the voters who elect governments, or the appointed judges? Moving forward, the direction that the Israeli courts take will depend on how judges, lawyers, and politicians perceive the political process and the broader limits of law.

2. Knesset override

The changes would allow the Knesset to overrule a decision of the Supreme Court on the legality of legislation. 

There should be nothing controversial here: either elected or appointed; democracy or elitism. I think it's that simple. In English law, the classic example is Barker v Corus. Parliament enacted the Compensation Act 2006 which effectively reversed the ruling of the House of Lords.

3. Reasonableness

As a result of case law in the 1990s, the standard adopted was the "reasonableness" in evaluating government political appointments and to strike down national policy. In the UK, we take the exact opposite approach. The English judiciary have traditionally regarded certain policy-based prerogatives as being non-justiciable. I think this is extremely important because (as already mentioned) it affirms the legitimacy of the political process and our democratic principles. 

The proposals preclude the Israeli courts from hearing appeals against the government on the basis that such decisions were 'unreasonable'. This strikes me as being quite sensible. In English law, the relevant equivalent in principle is referred to as Wednesbury unreasonableness. As a matter of practice, it is almost never used because - aside from very rare exceptions - it is ultimately arbitrary and based on what the judge feels is reasonable. That the Israelis put up with being told what is "reasonable" (and how so) from their Supreme Court is quite laughable.

4. Judicial appointments

The proposed changes would alter the composition of the 9-member judicial appointments committee (JAC), and this is:

• 3 sitting Supreme Court Justices
• 2 representatives of the Israel Bar Association
• 2 lawmakers
• The Justice Minister
• 1 additional Cabinet Member

In the UK, we have an independent JAC with judges and barristers represented on it. The remit of the English JAC is to appoint judges on the basis of their legal merit and expressly not political. Our English judges are always apolitical and I suspect it flourishes because of a deep respect for the constitutional boundaries between interpreting and creating law (as above). Israel may not be able to arrive at such a state of affairs, and judicial appointments may well be subject to different governments with different views. Given the direction of the Israeli courts, it is probably inevitable reality in its future evolution.

All-in-all, I think the reforms are pretty good and sensible.

The government's "Online Safety Bill": form of censorship? ✎

The very words "Online Safety Bill" should be a red flag. 

Ever-greater state power is draped in the language of protection and safety. In order to be protected by the state, as the logic goes, we must surrender some autonomy; and that way, everybody can be more effectively controlled and thus "safe". So, it's really a cliche because the other side of coin is 'control'.

Nevertheless, this traditional state power has been 'delegated' or 'devolved' to tech companies. Although separate from the state, they effectively give effect to state power. It's an interesting change in the political landscape and allows for a level of censorship that a government could not ordinarily bring into effect - without express Parliamentary authorisation. And that makes it a little bit different. Repeated calls have been clamouring for someone to "do something" about misinformation, online trolling and abuse, and child safety which are very popular with the electorate.

The problem is that there is no way of truly controlling interaction between people over the internet, with a view of eliminate ostensible harms, without diminishing a level of the interfacing. But, like other forms of prohibition, alternatives will emerge to provide the same original service – e.g. VPNs. I have no idea how effective age verification checks would be on websites, but I imagine – as usual prohibitions have shown – they incentivise more elaborate means of evading 'checks' to inappropriate websites. It seems to me that the more one seeks to try to control these things, the more likely a different end will be accomplished.

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The heart of this bill, when it comes to users, is to put the onus on tech companies to "protect from harmful content" as well as illegal stuff. But, how can anyone protect us from "harmful content"? What exactly is considered 'harmful'? Can entire subjects be framed as "harmful" on account of their controversy or inconvenience. Companies would be placed in the invidious position of picking sides to a controversy (or even an argument) and picking the people deemed 'correct' or 'fit' to engage in it. Enormous AI systems would be needed which would be inapt to recognise subtleties and shades, and thus blanket-rules will be introduced by the tech companies to 'protect' us. And as we have seen in recent artificial intelligence, they are only ever as good as their design and architecture and carry the inherent biases of their developers (see: New York Times, Who Is Making Sure the A.I. Machines Aren't Racist?).

The new so-called "duty" creates an enormous range of obligations which are unworkable for normal businesses other than the tech giants. Since this new duty entails enormous penalties, tech companies would be enormously empowered to minimise litigation and fees, and will lean on the 'better safe than sorry' approach with a heavy-handed clamp down. As Matthew Lesh has written, it will involve a pre-scanning of user messages before uploading and then a determination about what the company believes might be illegal. Further:

What is amazing is the sheer audacity and scale involved. The burden in companies must be incredible. Also, the proposed increase to OFCOM's remit must be hugely costly and onerous for the purpose of regulating websites. 

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Lord Sumption's first-class criticisms of the Online Safety Bill is also well worth a full read = The hidden harms in the Online Safety Bill.

The courts and life-support cases: Archie Battersbee ✎

The recent Archie Battersbee case has been in the news. (Archie Battersbee: How did life support battle end up in court? - BBC News)

There are two interesting thoughts here. The first relates to a theoretical aspect made by Lord Sumption in his Reith lectures. The second point relates to the shocking facts of the case as per the judgment.

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1. In Trials of the State by Lord Sumption questioned the efficacy of legal adjudication as a means of resolving essentially political or moral issues. Formerly, morality was confined to the autonomy of individual choice. But, nowadays, he argues that "we tend to regard social and moral values as belonging to the community as a whole, as matters for collective and not personal decision". 

He illustrated the point with reference to the Charlie Gard case. That case concerned a dispute between doctors and parents vis-a-vis the best interests of a gravely ill baby. The overarching point here is that by regarding the moral issue as a "collective" matter (notwithstanding the lack of harm to others in society), it renders it apt to being resolved via the public decision-making fora of the courts of law. 

The Children Act 1989 shifted the final decision as to the welfare of the child into the realm of institutional authorities (e.g. hospitals) on the basis of what was best for the child (as opposed to the parent). 

I think Lord Sumption's point was that this moral question has been usurped by the state with the consequence that the parental voice is legally qualified. In the Charlie Gard case, as Lord Sumption pointed out, the law did not grant parents the choice of pursuing medical treatment abroad.

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2. Having read Hayden J’s judgment (para 29-33); it seems to me that this poor child had already been dead for several months.

Arbuthnot J concluded that Archie’s brainstem, the part of the brain which regulates breathing (and other involuntary functions) was dead (para 85-95). In fact, it had turned necrotic which means that the cells were decaying. Once the brain stem is dead, there is no possibility of recovery. It’s not like a coma. Towards the end, even Archie's mother had resigned herself to this reality as she tried to get him moved to a hospice. However, it was thought he would die in transit. Hayden J described him as being so malnourished as incapable of food absorption.

It seems to me - even from the outset - that there was no real legal argument at all. It’s tantamount to a an abuse of a corpse.

The legality, under English law, of Elon Musk's $44bn Twitter deal termination ✎

Elon Musk has recently disclosed that he intends to withdraw from his agreement to buy the social media company Twitter for $44bn. He has accused them of disclosing "false and misleading" information vis-a-vis the number of bots and spam accounts.

In turn, Twitter's Chairman, Bret Taylor, countered that the board was "committed to closing the transaction on the price and terms agreed upon with Mr Musk".

This means a legal battle over whether to enforce the agreement.

In this blog piece, I would like to briefly outline how Elon Musk would fare if the corporate acquisition was governed by English law.

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Introduction to the Takeover Panel & "Material Adverse Change" Clauses

In the UK, public takeovers are regulated by the Panel on Takeovers and Mergers ("Takeover Panel"). Following the Companies Act 2006, the Takeover Panel became a statutory authority. But before then, it was established in the late 1960s as an independent body – encouraged by the Governor of the Bank of England and the Chairman of the London Stock Exchange – that produced guidelines and rules & behaved as a regulator of takeovers in the UK. Currently, the Takeover Panel consists of up to thirty-six members from leading financial and business organisations.

The main function of the Takeover Panel is to issue and administer the City Code on Takeovers and Mergers ("Code") which aims to promote and achieve equality of treatment and opportunity for shareholders in a takeover bid. It aims to prevent underhanded and unfair tricks and tactics that hurt shareholders and promote integrity in the UK's financial market.

Before moving into the law, it is useful at this juncture to define a technical term applicable to this subject . Material Adverse Change clauses ("MAC clauses") allow an offeror to walk away from a merger and acquisition ("M&A") transaction after parties have signed the merger agreement but before the transaction has been formally closed.

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Principle against "false markets" & rule 13 (conditions in M&A agreements)

In the Code, the fourth principle explains that the Takeover Panel seeks to avoid the creation of "false markets" and, accordingly, limit the ability of an offeror to withdraw from the transaction. In company law, "false markets" are understood as the inflated or depressed swings in the underlining price of a security brought on by erroneous or inefficient information. 

The fourth principle says: (Link)

False markets must not be created in the securities of the offeree company, of the offeror company or of any other company concerned by the bid in such a way that the rise or fall of the prices of the securities becomes artificial and the normal functioning of the markets is distorted. 

Additionally, and more specifically, rule 13 of the Code relates to conditions in the M&A agreement. Rule 13.5 says:

An offeror may only invoke a condition or pre-condition so as to cause the offer not to proceed, to lapse or to be withdrawn with the consent of the Panel. The firm offer announcement and the offer document must each incorporate language which appropriately reflects this requirement. The Panel will normally only give its consent if the circumstances which give rise to the right to invoke the condition or pre-condition are of material significance to the offeror in the context of the offer. This will be judged by reference to the facts of each case at the time that the relevant circumstances arise. (Emphasis mine)

The effect of Rule 13.5 is that the Takeover Panel can determine whether the offeror can exit a transaction if the issue is "of material significance".

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Conclusions about Elon Musk

Firstly, as can be seen in the graph below, the Elon Musk's offer to buy Twitter & subsequent withdrawal clearly created a false market. Additionally, the nature of Elon Musk's very public pronouncements and broadcasts exposes him to the dos-and-don'ts of corporate disclosures. Thus, under English law, I would think that his public pronouncements had the effect of contravening the principles of the Code vis-à-vis creation of false markets and potential disclosure liabilities.

Secondly, the question is whether Elon Musk's concern about the number of bots and fake accounts amounted, as he said on Twitter, to a "material breach of multiple provisions". In contrast, Twitter has maintained that the bot figure stands at 5%. Assuming that Twitter's figure is incorrect, in point of fact; it is worth asking whether bots at 5%, 10%, 25%, 35% etc… have any bearing on Twitter's cash flow, earnings, and balance sheet.

I am aware that Prof. Aswath Damodaran is a recent proponent of users-based valuations in DCFs and general corporate theory. Nevertheless, from my point of view, this theory seems a bit unsafe and doubtful; and so, presently, I would prefer to anchor valuations in more "traditional" corporate earnings only. Indeed, MAC clauses are designed and calculated to offset changes in the economic prospects of the company after the signing of the agreement. To my mind, Elon Musk would have to show deterioration in the business, assets, and financial position etc… of Twitter.

So, wrapping it all up; I would argue that Elon Musk's very public pronouncements of the Twitter takeover, and his purported justification for withdrawing are probably insufficient in English law to warrant the Takeover Panel suspending the takeover.

The Queen, the law, and the resignation of her PM Boris Johnson ✎

I would like to write about the events of the past week. Our constitutional conventions – that govern the Prime Minister's standing – have been tested and have been proven robust.

The incredible and almost unprecedent series of resignations from the Cabinet may have sounded alarming; but – beneath the surface – the system worked. I also think that even if the PM had decided not to resign, then our essentially political constitution with its conventions would have counteracted the crisis. 

History and law of the Prime Ministership

The office of the Prime Minister has evolved by convention – as opposed to legal doctrine – and is almost entirely uncodified. The Prime Minister, formerly the First Lord of the Treasury, harks back to the early 18th century with Sir Robert Walpole (1721—42). By tradition, the Second Lord of the Treasury was the Chancellor of the Exchequer. The modern rise of 'political parties' – as well as developments in the nineteenth century vis-a-vis the Crown and political conventions – solidified the need for such an office as a necessary feature of our constitution. 

The office of the Prime Minister did not arise from any specific statutory footing. The jurist A.V. Dicey first coined the expression "constitutional convention" to describe the democratic principles of the British constitution. Dicey explained that these conventions had fashioned constitutional democratic commitments by the Crown (what he called the "constitutional morality") that elevated "the ultimate supremacy of the electorate as the true political sovereign of the state". John Stuart Mill also identified these unwritten "maxims" of the constitution.

In modern times, the power to appoint a Prime Minster is governed by the constitutional convention of the Crown's prerogative in appointing the individual commanding the confidence of the lower house of Parliament. In other words, the leader of the party with an overall majority in the Commons. (Interestingly, while the current convention dictates that the Prime Minister needs to be a member of the House of Commons; in 1963, Sir Alec Douglas-Home was invited to the Prime Ministership – to succeed Harold Macmillan – from the House of Lords.)

In terms of the Queen's influence, Her Majesty's role – as Walter Bagehot described it – is "to advice, encourage and to warn" her Prime Minister in her weekly audiences. In truth, the Prime Minister leads the Cabinet whose Ministers the Crown appoints on the advice, and at the request, of the Prime Minister.

While the PM is primus inter pares in the Cabinet, that power is conditional on the continuing support of Cabinet colleagues and members of the party. The resignation of Rishi Sunak, former Chancellor of The Exchequer, is reminiscent of the resignation of Geoffrey Howe which ultimately drew the resignation of Margaret Thatcher (the UK's longest-serving Prime Minister since World War II). Afterwards, the issue of the new premier is the focus of the internal party apparatus and leadership procedures of the party with the electoral mandate.

The conventions work

In The Times, Lord Sumption wrote that:

Last Thursday's events marked the triumph of constitutional conventions. The civil service measured up to its reputation for honesty and impartiality; Parliament showed that even party discipline and a large majority will not protect a PM who defies the standards on which our politics depends. Johnson trampled on the conventions of his office. The political cost was high. He lost his job. That is how conventions are supposed to work.

I agree. In a nutshell, Boris Johnson pushed the conventions to their limit and was defeated. Amid the recent political bloodshed, my view is that the UK's unwritten constitution – with its political shape and form – has proven itself durable and sturdy.

There is some degree of uncertainty in the convention regarding whether the incumbent Prime Minister may remain in office until it becomes clear that a successor will be able to command the confidence of the party (or parliament, in the case of an election). The Cabinet Manual 2011 (para 2.10) states: 

The application of these principles depends on the specific circumstances and it remains a matter for the Prime Minister, as the Sovereign's principal adviser, to judge the appropriate time at which to resign, either from their individual position as Prime Minister or on behalf of the government. Recent examples suggest that previous Prime Ministers have not offered their resignations until there was a situation in which clear advice could be given to the Sovereign on who should be asked to form a government. It remains to be seen whether or not these examples will be regarded in future as having established a constitutional convention.

To my mind, it would be preferable to tender a formal resignation when the alternative premier has been settled by the party. 

The Queen's "reserve powers"

As already explained, the Crown generally acts on the advice of the Prime Minister. The royal prerogatives are largely exercised directly through ministers of the Crown. However, the Queen still exercises some prerogative powers herself which are at her discretion. These are known as the Crown's "reserve powers" ("personal prerogatives" as per Sir lvor Jennings). 

Below I quote two different sources which suggest that the Queen could under extraordinary circumstances exercise the reserve powers against the government of the day.

According to the Cabinet Manual:

Historically, the Sovereign has made use of reserve powers to dismiss a Prime Minister or to make a personal choice of successor, although this was last used in 1834 and was regarded as having undermined the Sovereign. In modern times the convention has been that the Sovereign should not be drawn into party politics, and if there is doubt it is the responsibility of those involved in the political process, and in particular the parties represented in Parliament, to seek to determine and communicate clearly to the Sovereign who is best placed to be able to command the confidence of the House of Commons. (Emphasis mine)

Prof Anne Twomey:

The existence of those reserve powers, nonetheless, remains essential to the effectiveness of the sovereign's personal influence. Today it is less the sovereign's social superiority that is likely to trouble a prime minister's mind than the sovereign's underlying constitutional power and the public's support for the sovereign, which is often much greater than that of the prime minister ... While the cardinal convention requires the sovereign and her vice-regal representatives to act upon the advice of responsible ministers, other than when exercising a reserve power, there is a degree of latitude in determining when the advice of ministers is final and must be obeyed ... The difficulty lies in ascertaining the point at which the sovereign must give way and how far he or she may go in terms of the initial refusal to act upon advice. (Source: From Bagehot to Brexit: The Monarch's Rights to be Consulted, to Encourage and to Warn)

It seems to me that the Crown's autonomous use of the reserve powers (which include the appointment and dismissal of Prime Ministers) is contingent on two factors: namely, the existence of an exceptional political crisis justifying the Crown's refusal to act on the advice of the Prime Minister, and a public consensus in favour of the Crown's intervention. 

For example, today, it seems that the government is giving Parliament a vote on whether MPs have confidence in the government (BBC News). If the Prime Minister had lost that vote of confidence but refused to tender his resignation (and continued to inhabit Downing Street), then it seems to me that the Queen, under her reserve powers, could actually intercede and dismiss her Prime Minister. The Crown's constitutional weight and authority would eclipse the government. Moreover, that exercise of power would probably strengthen the future of the monarchy. 

This would be preferable to a system which, perhaps like America, would involve the courts issuing an injunction demanding the resignation of the PM and/or ordering the Queen to make an alternative appointment. Our constitution is political in character: not legal.

The legality of Julian Assange's extradition to the United States ✎

The Home Secretary Priti Patel recently approved Julian Assange's extradition to the US to stand trial over charges of illegally obtaining and publishing highly classified documents. As you can see from today's new, it seems Julian Assange is trying to judicial review the Home Secretary's decision to approve his extradition. Watch this space - I've been following this never-ending Assange saga.

I write this piece for two reasons. Firstly, I want to defend the courts and the British state. The Blair government brought into our domestic law a US—UK treaty of extradition. International law requires that the government not have a choice in the matter. Secondly, because I like writing about these things, I would like to briefly discuss the High Court judgment and the possibility of further appeal.

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Background

Julian Assange has never really seen justice. He has managed to evade justice in Sweden for charges and allegations that would amount to rape under English law. In 2007, the Court of Appeal (BAILII link) held that having sexual intercourse without a condom — when his partner insisted that she would only have sexual intercourse if he had used a condom — amounted to rape under the Sexual Offences Act 2003 by violating the basic definition of consent (under section 74). The Court of Appeal — in relation to the other accuser whom Assange had sexual intercourse with while she was asleep — was also held to be rape as it obviously precluded any consent. When he faced the prospect of being extradited to Sweden he fled to the Ecuadorian embassy — Indeed, Ecuador, that bastion of freedom (classified as "not free" in the Freedom of the Press Report 2016 by Freedom House) — and caused his backers a considerable loss in bail money — £340,000 (The Guardian). He then made a nuisance of himself — through ungracious attitude and bad personal hygiene — at the embassy and outstayed his welcome. Fast-forwarding to the present, he has exhausted all decent avenues and friendships (e.g., Jemima Khan in the New Statesman). I lament the Swedish director of public prosecutions dropping the case. She said "at this point, all possibilities to conduct the investigation are exhausted" noting that "if he, at a later date, makes himself available, I will be able to decide to resume the investigation immediately" (The Guardian). I don't think those rape charges will ever be answered for.

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The government's obligations under the Extradition Act 2003

The UK–US extradition treaty of 2003 was implemented into UK law under the UK Extradition Act 2003. Under this Act, it is fairly straightforward for the United States to request an extradition of someone currently in the UK — including the extradition of British citizens. In United States of America v Assange, High Court and Magistrates' Court cases were based on the Extradition Act 2003.

The legislation has been used many times. For example, against British citizen Gary McKinnon (under hacking charges) whose extradition was averted for clemency reasons. Also, against Navinder Sarao (the 'flash crash trader') for financial market crimes and manipulation. Although, I believe the United States ultimately decided against his extradition. 

Under the 2003 Act, the Home Secretary is bound by law to sign an extradition order unless the following grounds for refusal are met:

1. Facing the death penalty
2. Speciality arrangement in place
3. Earlier extradition to United Kingdom from other territory and consent needed for onwards extradition.
4. Earlier transfer to United Kingdom by International Criminal Court

Ultimately, the High Court ruled that Assange could be extradited because they accepted assurances from the US government that Assange would not be held in maximum security prisons. Moreover, as per the jurisprudence of the European Convention of Human Rights, following the Soering Case, the UK is prohibited from extraditing a person who may face the death penalty. I have no doubt similar commitments by the US government were given to that effect. Thus, there is no legal reason for the extradition order to be refused.

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The High Court case

In United States of America v Assange [2021] EWHC 3313 (Admin), the appeal by the United States succeeded on the grounds relating to assurances produced by the US government (viz. grounds 2 and 5). The grounds of appeal in the judgment are considered briefly (BAILII link): 

Ground 2: Applying the test under section 91, judge ought to have notified the USA of her provisional view to afford it opportunity of offering assurances to the court.

Ground 5: USA provided UK with a package of assurances responsive to the judge's specific findings in this case. 

Both of these have been grouped together and concerning the legal effect of "Diplomatic Note no. 74" dated 5 February 2021. It seems it was late in the proceedings before it was admitted and the judge rejected it in the interests of preventing "further delay to proceedings". Lord Burnett - relying on India v Dhir [2020] EWHC 200 (Admin) - held that it was a question of why the assurances were delayed:

It is necessary to examine the reasons why the assurances have been offered at a late stage and to consider the practicability or otherwise of the requesting state having put them forward earlier. It is also necessary to consider whether the requesting state has delayed the offer of assurances for tactical reasons or has acted in bad faith: if it has, that may be a factor which affects the court's decision whether to receive the assurances. If, however, a court were to refuse to entertain an offer of assurances solely on the ground that the assurances had been offered at a late stage, the result might be a windfall to an alleged or convicted criminal, which would defeat the public interest in extradition.

Nevertheless, he concluded vis-a-vis the assurances that:

We do not accept that the USA refrained for tactical reasons from offering assurances at an earlier stage, or acted in bad faith in choosing only to offer them at the appeal stage ... We see no merit in the criticisms made of the individual assurances ... That risk is in our judgment excluded by the assurances which are offered. It follows that we are satisfied that, if the assurances had been before the judge, she would have answered the relevant question differently.

Nothing controversial or surprising here. Lord Burnett's conclusions strikes me as pure common sense.

Ground 1: Judge incorrectly applied the test under section 91

The United States seemed to have argued that:

the judge's approach applied a test which amounted to an obligation on a requesting state to guarantee that a requested person could not commit suicide in any circumstances ... [in] the judge went too far in a predictive assessment of what might happen in the long term. 

Lord Burnett weighed the factors that the judge considered and concluded that "we are not persuaded that the judge failed to take such matters into account".

The ground failed but it seemed shaky to start with. Again, common sense.

Ground 3: In issue concerning the principal psychiatric expert (Professor Kopelman) having misled judge on a material issue, but his evidence was nevertheless relied upon (or that little weight should be attached to it). Also, question of his lack of independence. Had judge attributed different weight to evidence, judge would not have applied section 91 differently.

Ground 4: Judge erred in overall assessment of evidence going to the risk of suicide

I found a very interesting article by Gareth Corfield (The Register) which covers this in some depth. It seems Professor Kopelman was ambiguous — which had the effect of misleading the court — which Lord Burnett held should not have been treated so leniently by the judge:

In our view, Professor Kopelman plainly did not comply with those statements, because in his first report he chose not to state what he knew of the relationship between Mr Assange and Ms Moris when opining on the effects of Mr Assange's "solitary confinement" in the Embassy and the risk of suicide; and subsequently he failed to correct his report or to make clear his earlier knowledge of the relationship.
With all respect to the judge, we cannot agree with her implicit finding that Professor Kopelman's failings could be excused or overlooked merely because his conduct could be viewed as "an understandable human response". Many people mislead courts for reasons which might be understandable but that does not excuse the behaviour and it is incompatible with the obligations of an expert witness to do so.

Once again, there is nothing tendentious here. Common sense prevails.

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Further appeal rejected

It seems appeal from the High Court must go to the Supreme Court as per section 114(4) of the Extradition Act. A decision must be made granting leave to appeal. 

I can't seem to find whether it was granted. However, according to Amnesty International (Amnesty International press), the Supreme Court has rejected any further appeal.

Quite bizarrely, in that press release, they said: 

Today's decision is a blow to Julian Assange and to justice. The Supreme Court has missed an opportunity to clarify the UK's acceptance of deeply flawed diplomatic assurances against torture. Such assurances are inherently unreliable and leave people at risk of severe abuse upon extradition or other transfer.  

I don't think Amnesty International understand that there needs to be a contentious point of law worth appealing to the Supreme Court — not a vague admonition that things 'should change'. From what I've read, the High Court's judgment was mostly common sense and covered very little of contention.

Watch this space.

The legality of Scotland's referendum on independence ✎

It seems that the UK Supreme Court may soon have to decide on whether Scotland can separately authorise a referendum on the Scottish independence question. It seems Nicola Sturgeon plans to hold the vote in October 2023. 

I have concluded that it would be legal for the Scottish Parliament to proceed with the referendum independently. I will first draw attention to the relevant sections in the Scotland Act 1998, followed by some analysis and discussion; and then concluded with a broader point about our constitution.

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The relevant aspects of the devolved powers in the Scotland Act 1998

• Section 28(7) - Reserves the UK Parliament's right to legislate for Scotland.
• Section 29 - An Act of the Scottish Parliament is law unless it is beyond its legislative competence. 
• Section 30 - The "reserved matters" are listed under six headings: the constitution, political parties, foreign affairs, public service, defence, and treason.
• Section 30(3) - How to determine whether a provision relates to a "reserved matter"
• Schedule 1, paragraph 1(b) - Aspects of the constitution including "the Union of the Kingdoms of Scotland and England"

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The legal criteria

1. Can the Scottish Parliament operate outside its "legislative competence"?

The answer is 'No'. In AXA General Insurance v HM Advocate, Lord Hope laid out the basics by noting that:

The United Kingdom Parliament has vested in the Scottish Parliament the authority to make laws that are within its devolved competence. It is nevertheless a body to which decision-making powers have been delegated. And it does not enjoy the sovereignty of the Crown in Parliament that, as Lord Bingham said in Jackson, para 9, is the bedrock of the British constitution. Sovereignty remains with the United Kingdom Parliament. The Scottish Parliament's power to legislate is not unconstrained. It cannot make or unmake any law it wishes. Section 29(1) declares that an Act of the Scottish Parliament is not law so far as any provision of the Act is outside the legislative competence of the Parliament. (Emphasis added)

2. Does the purported provision relate to a "reserved matter"?

Having established the need for the Scottish Parliament to operate within its legislative competence, it is then necessary to examine whether the referendum falls under the category of a "reserved matter" (appropriate to the Westminster Parliament). To answer this question, section 30(3) of the Scotland Act requires the court to consider; firstly, the purpose of the provision; and, secondly, "its effect in all the circumstances".

According to Nicola Sturgeon, the legislation would seek to authorise a "consultative, not self-executing" referendum. The problem here is that referenda are not sources of law. They capture a snapshot of opinion at a given time — and that is all they do. At this juncture, it is worth distinguishing between a political purpose and a legal purpose. To my mind, there is no doubt that Nicola Sturgeon and the Scottish National Party are using the referendum for their political ambition of an independent Scotland. But that is quite different from its legal purpose. Under the rules of statutory interpretation, the courts do not imply the ambitions of political parties into statute. The courts instead confine themselves to the language of a provision and interpret them with respect to what Parliament meant it to achieve.

As I mentioned, our constitution does not recognize referenda as a source of law. This is critical. Because it is not as if it were some unilateral declaration amounting to a cessation. Independence is an entirely separate process to a referendum. So, rather than focusing on the purpose of the provision; the more relevant, and perhaps more difficult, question for the Supreme Court is the extent to which the "effect in all the circumstances" of the referendum shifts the legislation into the sphere of a "reserved matter". The logical corollary entails the Supreme Court weighing the ostensible political "effect" - taking into account some concept of causation - to determine whether they amount to a legal "effect".

The political effect would presumably be the strong vote 'yes' in favour of independence which, one assumes, the UK government would be apt to take notice of and which would trigger negotiations leading to independence. However, the earlier Scottish referendum and, to a lesser extent, even the Brexit referendum did not produce a conclusive or very strong vote. The results were too uncertain to make any easy prediction as to its effect. Indeed, in the previous referendum, the sufficiently large 'no' vote would, in my view, militate against any self-assured proposition that a referendum is causative of independence. 

Moreover, even if one assumes the strong 'yes' vote for independence; a further assumption is that the UK government will, in fact, proceed with measures enacting Scottish independence. An alternative approach may entail the government undertaking further negotiation, with more devolution to the Scottish Parliament over time - while the UK government withholding final independence.

My point is that there are too many political and pragmatic ifs and what-ifs to deprive the courts from constructing and assembling an alternative plausible political reality, with sufficient certainty, to infer a legal effect.

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The wisdom of uncodified constitutions

What the Scotland Act 1998 demonstrates is how a political and practical issue has been transformed into an academic legal problem through the codification of Scotland's legal system. Our UK constitution is political in character. Disputes, such as these are strikingly rare in our legal system.

On the other hand, in the United States - and especially currently in light of the Dobbs v Jackson Women's Health - the morphing of political issues into legal disputes has forced the US Supreme Court into highly political and controversial subjects. It has resulted in an ugly and nasty undertone in US politics. 

The above discussion ought to be warning to the advocates of the UK adopting a written codified constitution.

Government's Northern Ireland Protocol Bill and domestic & international law ✎

A few days ago — at the second reading stage in the House of Commons — the government secured a majority to abrogate the Northern Ireland arrangements under the Brexit deal. (It would appear that Former Prime Minister Theresa May condemned the Northern Ireland Protocol Bill as illegal and damaging to the UK's international standing. Mind you, she abstained from voting against the government?)

I have concluded that the Northern Ireland Protocol Bill is very damaging in terms of domestic law and, as far as international law is concerned, the treaty abnegations are apt to be regarded as unlawful. I will first introduce the essential background to the ongoing political issues with the remarks by Sir Jeffrey Donaldson, leader of the Democratic Unionist Party (DUP, advocating Northern Ireland's continuation as part of the UK). Then, I will discuss the troubling issues as regards domestic law before turning to the international dimension.

By way of introduction, the Northern Ireland Protocol is part of the Brexit withdrawal agreement which falls within the ambit of international law. The Northern Ireland Protocols were special rules concerning the need for a border with the European Union through the Republic of Ireland. This stems from protecting the spirit of the Good Friday Agreement which put an end to "The Troubles". 

The problem here is that the DUP have declined and vetoed the formation of Northern Ireland's power-sharing executive with Sinn Féin. They contend that the Irish Sea border undermines Northern Ireland's bearing in the UK.

What does Northern Ireland Protocol Bill seek to change

• "Regulation of goods: option to choose between dual routes" as either "a UK regulatory route or the EU regulatory route (or both) as respects regulated classes of goods" — section 7
• Treasury to be able to regulate Northern Ireland's "value added tax, excise duties and other taxes" — section 17
• Ministerial powers with regards to future Northern Ireland Protocol related matters: "Minister of the Crown may engage in conduct in relation to any matter dealt with in the Northern Ireland Protocol (where that conduct is not otherwise authorised by this Act) if the Minister of the Crown considers it appropriate to do so in connection with one or more of the purposes of this Act" — section 18
• Northern Ireland's courts and tribunals will not be bound by European Court — section 20
• Regulations under this Act will have the power and force to make "any provision that could be made by an Act of Parliament". This regulation may contradict any erstwhile Northern Ireland Protocol agreements (section 22(a)) and even our domestic law (section 22(b)) — section 22

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Tremendous government power and the separation of powers doctrine

The most surprising - and disturbing - element of this Bill is towards the end (under heading "Final provisions") . It is section 22. In that section, a minister of the government has the power to effect law-making regulation with "any provision that could be made by an Act of Parliament". These "Henry VIII powers" (as they are referred to) are very alarming. It would permit a minister to exercise a law-making competence which has the standing of primary legislation (without the express need or oversight of Parliament). 

An enduring aspect of our constitution is that ministers act within their discretion accorded to them by Parliament - not replace Parliament. Moreover, our uncodified constitution also preserves the separation of powers. In this context, it requires the executive and legislative organs of the state to be clearly divided to ensure proper control and accountability. This prevents the concentration of power. The problem with this Bill is that it accords a power to make provisions which have the standing of primary legislation - which can even amend that original nominal statute - without any further active recourse to Parliament.

One may ask: why on earth would any government bill accord an almost unconstrained ministerial discretion vis-à-vis creating a "provision that could be made by an Act of Parliament"? I smell a rat. Under the doctrine of Parliamentary sovereignty, primary legislation is the highest superlative body of law which cannot be overruled in our lands. Our courts - when confronted with primary legislation - endeavour to interpret that law. Not only do the courts not strike down an Act of Parliament; they don't even question the validity of an Act or inquire into its legislative process. (In legalese, this doctrine is known as the "Enrolled Bill Rule" as per Lord Campbell in Wauchope (1842) and affirmed recently by the Supreme Court in the famous HS2 Action Alliance case [2014] UKSC 3.) This fuzzing of the separation of powers may have been engineered to place the courts in the invidious position of having to interpret ministerial law-making provisions as though it were Parliament's by virtue of its designation as an "Act of Parliament" whose Parliamentary procedure was, as I explained, exempted from judicial scrutiny.

This strikes me as an authoritarian attempt to place the government beyond the purview of the courts. In Miller II, Boris Johnson's government argued that prorogation was a non-justiciable exercise of a prerogative power (i.e., that prorogation was not a proper subject for the courts). However, the Supreme Court held that it was alien to our constitution to have an executive power that was unaccountable to the other organs of state - especially Parliament (having been obviously prorogued).

In the aftermath of Miller II, Lord Sumption endorsed the judgment observing that we should be concerned with the process - not the politics. He commented inter alia that: 

"the court's judgment, however, is concern not with the political issues of Brexit but with the process by which those issues are to be resolved." (The Times: It's about the process, not politics).  

I suspect that this Bill is will be a licence for the government to do what it can to negotiate a better protocol deal for Northern Ireland. But, as Lord Sumption remarked, we should be very concerned about the process - and not the politics.

The ongoing debate and strife concerning the legal structure governing Northern Ireland is a deadlocked fiasco and the British government is still navigating the crisis. But, it does strikes me that this is a subject that demands the participation and oversight of our Parliament. Ministerial discretion covering a substantial issue of national importance should be subject to proper Parliamentary accountability and scrutiny. Not to mention proper judicial oversight.

The doctrine of necessity and international law

Interestingly, the government has published it's legal position. The Attorney General's legal justification relies on Article 25 of the UN-based International Law Commission 1948 and the "doctrine of necessity" which the Attorney General maintains is "a clear basis in international law to justify the non-performance of international obligations".

Under Article 25, the circumstance of necessity involves satisfying the following criteria:

1. Action must relate to safeguarding an "essential interest" of the State
2. Interest must be subjected to a "grave and imminent peril"
3. Action must have been "the only way" to safeguarding that interest
4. Action should not have "seriously impaired an essential interest" of the other State
5. Obligation must not expressly excluded the defence of necessity
6. State invoking necessity must not have contributed to or caused the situation

In the Danube Dam case, Hungary and Czechoslovakia signed the Budapest Treaty of 1977 to construct a vast barrage project on the Danube to produce hydroelectricity. Later, Hungary abandoned its role in the project and submitted the dispute to the International Court of Justice on the grounds "of ecological necessity" to avert serious water supply damage and destruction of the aquatic marine environment. The Court held (in paragraphs 51-52) that: 

The Court considers, first of all, that the state of necessity is a ground recognized by customary international law for precluding the wrongfulness of an act not in conformity with an international obligation. It observes moreover that such ground for precluding wrongfulness can only be accepted on an exceptional basis. The International Law Commission was of the same opinion when it explained that it had opted for a negative form of words in Article 33 of its Draft

"in order to show, by this formal means also, that the case of invocation of a state of necessity as a justification must be considered as really constituting an exception - and one even more rarely admissible than is the case with the other circumstances precluding wrongfulness.. ." (ibid., p. 51, para. 40).

Thus, according to the Commission, the state of necessity can only be invoked under certain strictly defined conditions which must be cumulatively satisfied; and the State concerned is not the sole judge of whether those conditions have been met. (Emphasis added)

While the state of Northern Ireland is undoubtedly an "essential interest" of the UK (point no. 1); Northern Ireland would most probably not be regards as subjected to a "grave and imminent peril" (point no. 2). In the eighteenth-century Neptune case, an American-registered vessel on voyage to France was captured by the British and its cargo seized. The British government justified the seizure on the grounds of necessity a propos being "threatened with a scarcity of those articles". It was dismissed as being imaginary and neither real nor pressing. In this case, "grave and imminent peril" translates as a situation of danger to the State or its population. 

Northern Ireland is beset by political crisis - but its citizens are not in any danger. Neither Sinn Fein nor the DUP have suggested a return to 'The Troubles'. The DUP merely have to assent to the election of the Stormont Assembly Speaker Michelle O'Neill. As with the Neptune case, the present crisis would probably not meet the standard of a "grave and imminent peril". Even if assuming that Northern Ireland was in peril, how would such disparate addenda (such as the authority of the European Court) assuage this "grave and imminent peril"? The very fact that tax-related regulations and the Luxembourg Court are also being repudiated would — to my mind — militate the ostensible "grave and imminent peril" claim. At any rate, there is little point in proceeding with the other criteria as we have hardly satisfied this point.

My hunch is that the government's attempt to manoeuvre via the doctrine of necessity to renege on treaty obligations would probably fail. It would most likely engender certain diplomatic and political blow-back.