For a while I’ve wondered if it might be helpful to summarise key Supreme Court and other major judgments in a few sentences. So I thought I’d have a go at it as an experiment, while I’m gathering my fuller thoughts on today’s Supreme Court judgment.

Here, then, is my effort at a bite-sized summary of the legal reasoning behind today’s judgment. The first paragraph contains the key reasoning explaining why disclosure was ordered (which as you can see, was not consistent even among the majority on the court). The second paragraph is an important secondary piece of reasoning which helps you understand the case fully. On that, a bigger majority’s reasoning is consistent.

Vetoing release of the letters was unlawful [5-2 against the government], either because the veto power in the Act is very restricted, not spelling out as clearly as the constitutional principle of legality requires that ministers can veto just because they disagree reasonably with the Upper Tribunal about the public interest (Lords Neuberger, Kerr and Reed); or because it requires more detailed explanation than the Attorney General gave of why he says the Upper Tribunal was wrong to order disclosure (Lord Mance and Lady Hale).
Anyway, the veto power can’t be used to block release of letters about the environment because it negates the binding judicial decision on disclosure which the EU Environmental Directive requires (all 5 of those Justices, plus Lord Hughes) [6-1 against the government].

For law students and others interested in the technicalities, the ratio of this case is hard to identify because the majority doesn’t share common reasoning. The best I can say to identify the ratio is that the veto power is much more limited than it appears to be on its face, either in terms of when or how it can be used.

Because it’s a back-up, the point about the EU Directive is obiter: it doesn’t create binding precedent. But it’s pretty hard to argue with. I’m quite surprised there was any dissent about it.

You want the dissent? You want to see the dissent in a sentence or two? Okay.

It’s perfectly clear from the Act that Parliament intended the veto to be available where ministers reasonably disagree with the Upper Tribunal about the public interest in disclosure. The veto was reasonable, so that’s that. It was lawful. (Lords Hughes and Wilson).
The veto power doesn’t breach the EU Directive either, because judicial review of the reasonableness of the veto is enough to amount to the required judicial decision on disclosure. (Lord Wilson).

If this is useful, I’ll do it again in future.

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Today the Commons Home Affairs Select Committee published a report following its short inquiry into police bail. As part of that report the committee recommended that, just as those who say they’ve been the victim of a sexual offence enjoy anonymity,

the same right to anonymity should also apply to the person accused of the crime, unless and until they are charged with an offence.

In response I’ve written a piece for Independent Voices. As well as opposing this idea on principle (I think it relies on wrong-headed ideas about the presumption of innocence and fairness) what struck me when writing this was how often it’s MPs themselves who keep resurrecting this debate, and how superficial their approach to it is when they raise it:

It’s worth noticing how lightly MPs have dealt with this over the years. They knew better than Dame Rose Heilbron in the Seventies, and many of them knew better than the Criminal Law Revision Committee in the Eighties. The Coalition knew better than its own manifestoes, and the Home Affairs committee knows better today, though it only heard from five witnesses – and spoke to them mainly about police bail, in fact. MPs simply don’t approach this issue with the seriousness it deserves.

I hope you’ll read the whole piece.

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Diamond Geezer | Creative Commons

In yesterday’s judgment on 1,015 “legacy” applications, the European Court of Human Rights ruled once again that the legislative bar on prisoners’ voting breaches article 3 of the first protocol to the European Convention. That result was predictable given the Court’s case law on votes for prisoners.

But more importantly, the Court awarded none of these successful applicants a penny in damages; and not a penny in costs, either. The Court has drawn a line under its dispute with the UK, and will do nothing further to raise the stakes.

We’ve known for a long time that there were hundreds if not thousands of applications by prisoners, piggy-backing on John Hirst’s successful complaint over ten years ago now. These cases were stayed for a time, following the Greens & MT “pilot judgment” against the UK in 2010, in which the Court said explicitly that UK law must change. But they were later revived, Parliament still not having legislated.

The fact that so many claims have been outstanding led many in the media to speculate about the huge sums we might have to pay, £160 million being mentioned at one stage (and debunked by Adam Wagner at the UK Human Rights Blog). These sums were plucked out of the air, often combined with the factoid that the Court could fine the UK – which it can’t. What it can do is compensate applicants (a very different matter, since it allows for no punitive element) and award them legal costs. I think the figures bandied about may have originated from a fag-packet reckoning by John Hirst himself, though I don’t complain against him: he was campaigning, so it was fair enough to argue about how much this “could” cost.

But the total bill from these 1000+ cases amounts to £0.00. Fears of the fiscal impact of this dispute were exaggerated. George Osborne and the Office for Budget Responsibility need not revise their deficit forecasts.

Yes, some cases remain, including more that relate to European elections and some about the Scottish referendum. But it’s hard to see how prisoners can hope to be awarded damages or costs, even if they win. The same must go for any leftover claims about Westminster Parliament votes.

In truth, it’s hard to see how the European Court could ever have upped the ante with the UK. It’s doubtful that its powers are wide enough. So to call this a Strasbourg surrender would go too far. But choosing to award neither damages nor (and this is the telling point) any legal costs means the Court is washing its hands of this, and wants no more cases added to its backlog. The message to prisoners and their lawyers is clear: apply, and you’ll have a symbolic win. There’s no cash in it.

Abu Qatada is abroad; our courts can impose whole-life orders; and Britain’s continuing failure to give prisoners the vote is cost-free. It’s now simply a diplomatic issue for the Council of Europe’s committee of ministers, who must know this is not the worst case of non-implementation, and are unlikely to take drastic action.

The “dialogue” approach pursued by Dominic Grieve when he was Attorney General and supported by an increasing number of our own judges in recent years, has succeeded. British pushback and the 2012 Brighton reforms have changed the weather in Strasbourg, where the Court is showing a new restraint – arguably excessive restraint in some cases, leading to confused rulings like the one about the niqab ban in France. But it’s a restraint that will be welcome in Britain.

What should we make now, then, of Conservative plans to make Strasbourg judgments “merely advisory” or else pull out of the human rights convention entirely? Those plans are yesterday’s solution to yesterday’s problem, with nothing to support them save the odd grumble about deporting a foreign criminal – and the hot air generated by UKIP.

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The Criminal Bar Association’s acceptance of an invitation to speak at the government’s Global Law Summit next month is “pandering” to the Lord Chancellor’s “political opportunism”, John Cooper QC said today in an interview for this website.

going to this jamboree in my opinion is copping out

said the leading criminal barrister.

We should not be attending an event in my opinion which is simply a political tool by this Lord Chancellor to make him and the government look good on the eve of a general election … by going there, we are tacitly endorsing what Grayling is doing to the criminal justice system.

The criminal bar should, he said

be seen not to be pandering to that political opportunism.

In a wide-ranging interview, John Cooper also spoke about Sir Brian Leveson’s proposals for improving the efficiency of criminal justice, the DPP’s consultation on supporting victims in the trial process, and recent criticism of a Crown Court judge who said a former teacher convicted of having sex with a pupil had been “groomed” by the girl.

On the Leveson proposal to limit defendants’ right to choose jury trial, he said

jury trial’s already under threat, and we need to be very careful about this development … what one person might call trivial or low level … could well be important to you and I.

John Cooper surprised me by saying he’d changed his mind, over time, on the role of victims in the criminal justice system. Earlier in his career, he said

I was thinking in a straitjacket

but in what might

sound like a slap in the face to the fundamentalists

he said we need to think about increasing the role of victims in criminal trials. And he said he was open-minded about extending the Attorney General’s power to refer unduly lenient sentences to the Court of Appeal.

We also spoke briefly about Saudi justice and our government’s involvement with it.

You can listen to the whole interview here, or follow the links if you’d like to listen to just one section of the interview. You can find all the clips at Soundcloud.

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Dominic Grieve: I am not a lone voice crying in the wilderness

December 4, 2014

The Conservative debate on human rights is “very far from over”, Dominic Grieve told an audience of lawyers last night, as he strongly criticised his party’s recent policy paper – saying he was not sure a key aspect of it “was really intended as a serious proposal”. There are “plenty” of Conservative supporters of human rights, […]

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The PM’s “foreign fighters” plan: probably lawful

November 14, 2014

Overnight in Australia, the Prime Minister announced new counter-terrorism powers which he intends to introduce in a bill in the next few weeks. He said there’d be New powers for police at ports to seize passports, to stop suspects travelling and to stop British nationals returning to the UK unless they do so on our […]

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Grieve: Counter-terrorism measures “probably getting to the right place”

November 14, 2014

The former Attorney General Dominic Grieve appeared on Radio 4’s World at One Today to discuss the government’s new plan to “regulate” the return to the UK of those who, for instance, have gone to Syria to fight for the “Islamic State”. Grieve said his impression was that the new proposals – announced by the […]

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Phillips, Schiemann, Edward, Jacobs and others: “There is no credible alternative to the European arrest warrant”

November 6, 2014

In a letter published in today’s Telegraph, half a dozen senior retired judges call for Britain to “opt back in” to the European Arrest Warrant system. Parliament is expected to vote next week on the government’s proposal to remain in the EAW system and other key European justice measures. The letter’s signed by the former Supreme Court […]

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Dinah Rose QC: the Conservative human rights paper is “just so rubbish”

October 29, 2014

The Conservative party’s plan for a British Bill of Rights is “rubbish”, the leading public law and human rights barrister Dinah Rose QC said last night. She was answering questions after her lecture, entitled “What’s the Point of the Human Rights Act?” at an event in central London organised by the conservative think-tank, Politeia. In response to Joshua Rozenberg, […]

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David Davis: Cameron in opposition “really wanted to leave the Convention”

October 29, 2014

David Cameron “really wanted to leave” the European Convention on Human Rights when he was leader of the opposition, David Davis MP said last night at a meeting organised by the conservative think-tank, Politeia. He was speaking briefly in response to a lecture given by Dinah Rose QC entitled “What’s the Point of the Human Rights Act?”. […]

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