I doubt very much he will: I think the Supreme Court will be driven to conclude that the phrase judicial authority in the European Arrest Warrant Framework Decision is capable of including a public prosecutor, and that UK legislation giving domestic effect to the Framework Decision must necessarily have the same meaning. If they reach any other conclusion, I’ll think they’ve gone bonkers.

But what if he did win? The question’s interesting because it shines light on an unusual, time-limited opt-out the UK has in relation to the European Arrest Warrant system – and all similar EU laws on criminal cooperation.

Something I’ve written before is that the obvious procedural solution usually available in a case where parties are bickering over the meaning of an EU legal term – a reference to the European Court of Justice – was not available in this case. Indeed, the Supreme Court would normally have had to refer the matter to the ECJ for a binding decision because under Article 267 of the Treaty on the Functioning of the EU, where a question of interpretation

is raised in a case pending before a court or tribunal of a Member State against whose decisions there is no judicial remedy under national law, that court or tribunal shall bring the matter before the Court.

There’s no national judicial remedy against decisions of UK Supreme Court, so it would be duty bound to refer – and Julian Assange would have remained on bail however long the ECJ took to rule – and it does usually take a long time.

None of this applies because the UK has not accepted its jurisdiction in relation to criminal cooperation laws like the EAW Framework Decision. Because of Protocol 36 to the TFEU, this opt-out from ECJ jurisdiction only lasts till 2015, though: scroll all the way down to Article 10(1) and (3) to see the relevant provisions. It’s one of the compromises the UK made in the Lisbon Treaty. The only way of the UK escaping termination of the opt-out would be to pull out of the EAW system altogether under Article 10(4) of the Protocol.

If the Supreme Court justices did decide to read the Framework Decision as requiring an EAW to be issued by a court, the first obvious consequence would be to throw the European Arrest Warrant system into disarray, at least as far as it applies to suspects sought in the UK. Countries like Sweden and France whose prosecutors issue warrants would be unable to pursue suspects in Britain – those countries will no doubt see our judges as having created a “safe haven” for fugitives.

Initially this might please Eurosceptics and some civil liberties campaigners, who’d be pleased to see British judges insist on their own reading of EU law, ensuring that anyone who wanted someone extradited from Britain had to live up to British ideas of justice. This is the sort of relationship some Conservatives would like the UK to have to human rights law, and which it is possible to achieve in this corner of EU law until 2015 because of the UK’s ECJ opt-out.

I suppose the member states affected might decide to designate courts as their issuing authorities in order to satisfy the UK. But this seems unlikely given that the change would only be needed in respect of one other state. It’d make much more sense, surely, to amend the Framework Decision. The solution could be to replace the term judicial authority with something else – like simply authority – wherever necessary to remove the local British difficulty.

But wait: amending the Framework Decision could potentially have further, unwanted ramifications. Under Article 10(2) of Protocol 36, which we looked at earlier,

The amendment of an act referred to in paragraph 1 shall entail the applicability of the powers of the institutions referred to in that paragraph as set out in the Treaties with respect to the amended act for those Member States to which that amended act shall apply.

In other words, any amendment would result in the immediate termination of the UK’s opt-out from ECJ jurisdiction: it would bring about the applicability of the powers of the ECJ with respect to the amended Framework Decision.

Surely David Cameron at least would not want to bring that about three years before it’s due; although the relevant minister, Ken Clarke, and Liberal Democrat ministers, might take a different view. A Julian Assange win, in other words, would be a grenade laid next to the government’s Euro-fissure.

How could the problem be solved? One way, as I’ve said, would be for other countries to change their arrangements to suit the British and allow us to keep our opt-out for as long as it suits us. Unlikely, perhaps, given Britain’s recent unhelpfulness towards them. Another option would be for the EAW system to limp along for three years, British suspects being out of reach of some European prosecutors, until the ECJ can order British judges to fall into line. The European countries affected, like Sweden, might decide to retaliate by not extraditing suspects to Britain.

Finally, it might be possible for member states to agree to textually amend the Framework Decision – or at least the British text – but at the same time also to agree that the change does not amount to an “amendment” but was merely a “clarification” of what was always the intended meaning of the instrument. That would be sneaky, and subject to a possible legal challenge, but might work as a reasonable trade, the UK agreeing to remove the problem in return for being allowed to keep its limited opt-out.

Of course many Eurosceptics would prefer us simply to pull out of the entire system of criminal cooperation in Europe, and would use the difficulty to lobby hard for this area of policy to be fully “repatriated” on the back of the Supreme Court’s ruling.

That wouldn’t necessarily result in people like Osman Hussein evading British justice. Presumably we’d negotiate bilateral extradition treaties with our European neighbours. Whether a judge would need to issue an extradition request or whether a prosecutor could do so would then simply be a matter of agreement in those treaties. I wonder what the UK-Swedish treaty would say.

Without Prejudice is back in its panel format this week, as Professor Gary Slapper, Director of NYU in London, and barrister and former MP Jerry Hayes  join Charon QC and me to discuss:

• why do we need law schools?
• are human rights “left-wing twaddle”?
• the power of the state – has it got too much? and
• Julian Assange’s Supreme Court appeal,

plus, Jerry’s angry about barristers’ cash flow, and what the government’s done to make it worse.

Gary and Jerry both have plenty to say in their own inimitable styles – and I got a word in from time to time too. It was a free-wheeling, edge-of-seat type of discussion, and a lot of fun.

Listen to the podcast here or subscribe through iTunes.

Julian Assange today takes his argument against extradition to Sweden to the UK Supreme Court. The hearing is due to finish tomorrow – it’s not clear yet when the Court is likely to publish its judgment.

There’s one question only being argued before the Supreme Court: whether the Swedish prosecutor is a judicial authority for the purposes of Part 1 of the Extradition Act 2003, which gives effect to the European Arrest Warrant system. All his other legal arguments – including the argument that the European Arrest Warrant against him is invalid because he’s not been charged – have been defeated and are no longer in dispute.

Thanks to the Guardian, we can read Assange’s arguments on the judicial authority point:

The argument looks attractive superficially (as written submissions usually do when read in isolation), but in reality it’s pretty thin. Dinah Rose QC, for Assange, makes much of the fundamental principle that a prosecutor cannot be a judge in its own cause, and argues that case law under the European Convention on Human Rights strongly supports that principle. But the argument is deeply problematic: the ECHR does not and cannot lay down a general principle that prosecutors can’t count as judicial authorities for any purposes whatever throughout Europe.

The case law Dinah Rose cites in support of her client shows us a prosecutor isn’t sufficiently independent to order Assange’s detention under article 5 of the Convention. A prosecutor wouldn’t be sufficiently independent to determine civil rights or criminal charges under article 6. But the Swedish prosecutor in this case has neither ordered Assange’s detention (that has been authorised by a court in both countries) nor purported to determine any charge against him. Assange’s argument does not establish the link between the requirements of the Convention and the issuing of the European Arrest Warrant that would in my view be needed in order for the human rights principles he draws on to govern the Court’s interpretation of the concept of judicial authority. It’s this missing link that I think is the fatal flaw.

Assange’s argument is hopeless – I expect him to lose and, as I’ve been saying for the last year, I expect him eventually to face justice in Sweden.

He may apply to the European Court of Human Rights and try to obtain “interim measures” preventing his immediate surrender to Sweden – but since it’s unclear on what basis he can argue his extradition or prosecution would breach the Convention at all, and since there can be no serious suggestion that Swedish justice would amount to a flagrant denial of justice, I’ll be astonished if he achieves that.

He could be in Sweden by Easter.

In today’s Independent, President of the European Court of Human Rights Sir Nicolas Bratza defends the record of his court, and effectively pleads for more understanding in Britain. The European Court, he says

has been particularly respectful of decisions emanating from courts in the UK since the coming into effect of the Human Rights Act, and this because of the very high quality of those judgments. To take 2011 as the most recent example: of the 955 applications against the UK decided, the court found a violation of the convention in just eight cases.

This is a good point to make, rightly correcting the misleading statistics that have been bandied around on this subject and that have already been taken apart by Adam Wagner at the UK Human Rights Blog.

In fact, Bratza makes a number of very good points. The Strasbourg court’s influence has been overwhelmingly positive, he says, citing issues on which its rulings have been widely accepted such as corporal punishment, homosexuality, the rights of transsexuals and the treatment of child defendants. He reminds us of the court’s role in consolidating democratic reform in central and eastern Europe, and points out that the court’s backlog is not the result of its inefficiency, but of the huge and increasing volume of applications it receives. I agree with almost everything he says.

But he goes on:

Against this background, it is disappointing to hear senior British politicians lending their voices to criticisms more frequently heard in the popular press, often based on a misunderstanding of the court’s role and history, and of the legal issues at stake. It is particularly unfortunate that a single judgment of the court on a case relating to UK prisoners’ voting rights, which was delivered in 2005 and has still not been implemented, has been used as the springboard for a sustained attack on the court and has led to repeated calls for the granting of powers of Parliament to override judgments of the court against the UK, and even for the withdrawal of the UK from the convention.

Bratza does not defend or criticise the Hirst judgment on prisoners’ votes, it’s worth noting – rightly, since it cannot be part of his role as President to debate the merits of any one of the court’s rulings. Fair enough. And I agree with him that the stand-off between British politicians and the court on prisoners’ votes is indeed unfortunate. But this case in particular undermines Sir Nicolas’s contention that

criticism relating to interference is simply not borne out by the facts.

I support the European Court of Human Rights, and am pleased to see Sir Nicolas defend its general record robustly. Most British criticism of the human rights court is wrong-headed and ill-informed. But on some specifics, I’m afraid the facts do bear out the complaint that the court has sometimes been too interventionist.

In the Hirst case and a couple of those which have followed, the court ignored one of its own key legal principles (the “margin of appreciation” it supposedly allows states), preferring to micromanage policy throughout Europe. The same sort of thing happened, I’d argue, in the DNA database case, S v Marper.

If the court can check its own occasional excessive interventionism, it will deserve our respect all the more.

Last week the European Commission took the first step towards European Court proceedings against Hungary, over the country’s controversial new constitution, which took effect at the start of the year.

Here’s the Commission’s press release. It summarises the legal grounds on which the Commission has issued its letter of formal notice:

Under new Hungarian legislation, also 274 judges (including judges at the Supreme Court) are being compulsorily retired in contradiction to EU rules. The government also receives powers over the data protection authority that contradict the EU Treaties, which require the independence of national data protection authorities (Articles 16 of the Treaty on the Functioning of the European Union/TFEU, Article 8(3) of the Charter of Fundamental Rights) and the independence of the national central bank (Articles 130 and 127 TFEU, Article 14 of the Statute of the European System of Central Banks and of the European Central Bank). Hungary’s central bank is part of the European System of Central Banks (ESCB) and the Hungarian Central Bank Governor has a seat in the General Council of the European Central Bank, which is the ECB’s third decision-making body.

As I say, this is only the first formal step towards infraction proceedings in the European Court of Justice: litigation hasn’t actually been commenced yet. Hungary now has a month in which to respond to the Commission in private correspondence, after which the Commission, if not satisfied with Hungary’s arguments and proposals, will deliver what’s called a “reasoned opinion” under article 258 of the Treaty on the Functioning of the European Union. That’s equivalent to a letter before action, and if Hungary doesn’t then cave in to the Commission’s demands (probably within a further month), the court proceedings will actually begin.

So in reality, we’re in a period of intense negotiation. Last week the Hungarian prime minister Viktor Orban defended his policies in the European Parliament; today he meets Commission President Jose-Manuel Barroso to discuss the differences between them.

Some might criticise the response of the EU and its leaders as being too soft, as compared with its policy of swift sanctions against Austria when the controversial right-wing Freedom Party entered its government in 2000. That though, was an unsuccessful and counter-productive policy, which many even left-wing Austrians thought was over the top (I visited Austria twice that year as I recall), and from which the EU backed down fairly quickly.

This more targeted approach of challenging concrete and specific breaches of EU law as they arise seems to me to have much greater potential to produce results, and to appear legitimate to Hungarians.

Without Prejudice will be back on the podcast air properly in a couple of weeks in its panel format, but in the meantime Charon QC and I spoke last night about

• the government’s justice and security green paper on “closed material procedures” in civil proceedings
• Abu Qatada’s case in the European Court of Human Rights
• this week’s High Court ruling granting an injunction to the City of London against the St. Paul’s Occupy LSX protesters
• contempt of court online, and
• Scotland’s referendum.

We enjoyed it – I hope you do too. Listen to the podcast in the player below – and remember you can subscribe through iTunes.

On Monday the Guardian published this piece about Sadakat Kadri‘s claim that

Islamic law can be compatible with the toughest human rights legislation.

I doubt this very much; and I don’t think my or anyone else’s scepticism is the result of a lack of “sharia-literacy”. In a BBC Radio 3 interview last week with Anne McElvoy (from 28’35″) Kadri complained that Islamic law is too often seen as a monolithic, savage code. He argued that we need to appreciate its nuances, that it’s not simply about violent punishments, and that the claims of Islamists do not necessarily reflect the true sharia. To me this sounds like a hopelessly abstract apologia, and reminds me of those Trotskyists who urged me in the 1980s to stop worrying about the false Marxism practised in the Soviet Union, and learn more about the true revolutionary path. But that’s beside my point.

What interests me is what the Guardian report says about the status of sharia in the UK.

In 2008, Rowan Williams, archbishop of Canterbury, sparked controversy when he appeared to suggest that sharia law should be more widely adopted.

In fact, under the Arbitration Act 1996, the rulings of religious bodies, including the Muslim arbitration tribunal, already have legal force in disputes involving matters such as inheritance and divorce.

But this isn’t the position in fact, as regards divorce.

The solicitor David Hodson has argued that legislation is needed so as to permit binding arbitration in  family matters. That’s a change that would be needed because it’s well established as a matter of common law that the courts will not simply recognise and apply an agreement between wife and husband about what should happen on divorce. In Edgar v Edgar [1980] 1 WLR 1410 Lord Justice Ormrod said

it is common ground that the principle laid down by the House of Lords in Hyman v. Hyman (1929) AC 601, still applies. At page 64, Lord Hailsham L.C., said,

“However, this may be, it is sufficient for the decision of the present case to hold, as I do, that the power of the court to make provision for a wife on the dissolution of her marriage is a necessary incident of the power to decree such a dissolution, conferred not merely in the interests of the wife, but of the public, and that the wife cannot by her own convenant preclude herself from invoking the jurisdiction of the court or preclude the court from the exercise of that jurisdiction.”

It’s this rule that has stood in the way of recognising pre-nuptial agreements in this country, as Christopher Sharp QC explained in this 2009 paper.

The position’s sufficiently clear for Jack Straw, when he was Lord Chancellor and Justice Secretary in 2008, to answer a question from Dominic Grieve in these terms:

In the past year the Ministry of Justice has received a number of requests for information and details of policy relating to Sharia law and Sharia councils and their position on family issues …

Arbitration is not a system of dispute resolution that may be used in family cases. Therefore no draft consent orders embodying the terms of an agreement reached by the use of a Sharia council have been enforced within the meaning of the Arbitration Act 1996 in matrimonial proceedings.

The Guardian piece ends by setting out the supposedly “top five sharia myths”. But perhaps the most common sharia myth in this country, and one that’s been developing partly as a result of inaccurate comment, is that sharia decisions on divorce have legal effect through the Arbitration Act 1996.

It’s not unusual nowadays for campaign groups of all kinds to take judicial review proceedings against public authorities: it’s now well established that their knowledge of and involvement in matters of public interest means they can have a sufficient interest entitling them to challenge public law decisions within the area of their expertise. The key case establishing the principle in the mid nineties was the Pergau dam case – R v Foreign Secretary ex parte Word Development Movement.

But things are different under the Human Rights Act 1998, as last week’s judgment in the Administrative Court in Children’s Rights Alliance v Justice Secretary reminds us. The Children’s Rights Alliance were trying to force the Ministry of Justice to track down and contact people who may have been subjected to unlawful restraint while in Secure Training Centres as youths, between 1998 and 2010.

Mr Justice Foskett decided to look at the case on its merits – and rejected it. There’s no requirement on ministers to go through this exercise of tracing and contacting those who may have been unlawfully restrained, whether under the Human Rights Act or common law.

But in any event, he concluded, he would have been obliged to throw the case out as far as it related to human rights, because the CRA was not itself the victim of any human rights breach. Section 7 of the Human Rights Act 1998 says that

(1) A person who claims that a public authority has acted (or proposes to act) in a way which is made unlawful by section 6(1) may—
(a) bring proceedings against the authority under this Act in the appropriate court or tribunal, or
(b) rely on the Convention right or rights concerned in any legal proceedings,
but only if he is (or would be) a victim of the unlawful act.

and

(7) For the purposes of this section, a person is a victim of an unlawful act only if he would be a victim for the purposes of Article 34 of the Convention if proceedings were brought in the European Court of Human Rights in respect of that act.

The European Court has a fairly flexible approach to what makes you a victim; but this doesn’t extend to allowing applications by campaign groups acting on their own, on behalf of those whose rights they say have been breached. Of course if a campaign group’s own rights have been curtailed – its freedom of expression, for instance – then it is itself the victim of an alleged breach, and can use human rights arguments in court. That’s what happened for instance in R (Animal Defenders) v Culture Secretary [2008] UKHL 15. But it’s not what happened in this case.

The answer under section 7 is clear: the CRA was not the victim of any unlawful restraint, and so could not rely on human rights arguments to force the Secretary of State to do anything (see paragraphs 212-225 of the judgment).

Foskett J made it clear he thought this was “unfortunate” and that he reached his conclusion with little enthusiasm (paras. 223-4). But since that is the law, was it a good use of public resources to hold a three-day hearing, much of which must have been dedicated to the very human rights arguments that the CRA could not lawfully advance?

As a resident of Brent in north-west London, I’m not sure what I think about the Labour council’s planned library cuts. I’m not happy that any should be cut. I don’t want social care to be cut any more than it needs to be, either, or any of the other important things councils do. And I think libraries could be cheaper and better by going back to basics and focusing solely on books – rather than increasingly becoming all-purpose community, youth and IT centres, which is what Willesden Green library sometimes seems like. Anyway, I have some sympathy with the campaign against the cuts, without thinking libraries (any more than legal aid) should be prioritised above all other public services.

I’m writing about this because of the failure, yesterday, of the appeal in the judicial review taken by campaigners against Brent Council’s decision. Regardless of my views on libraries, I’m pleased the appeal has been dismissed.

The claim was made on a number of grounds, but the main one was that the council had breached its duty under section 149 of the Equality Act 2010, by failing to have due regard to the the need to eliminate race discrimination. Indirect discrimination arose, it was argued, because it seems 46% of borrowers from Brent libraries are Asian, although Asians make up only 28% of the population of the borough.

I think there’s something funny about this approach to indirect discrimination, to be honest: of course a statistically-proven disparate impact on different groups can amount to indirect discrimination – that I don’t doubt. But, as I read the judgment, like Lord Justice Davis (para. 97)

I became increasingly doubtful if this argument on behalf of the appellants could be right; and in fact I have arrived at the view that it is artificial and wrong.

I’m still trying to work out where I think the “funniness” is found. The council argued that the closures were not intrinsically liable to affect Asian people more than anyone else, and I suspect this may be the answer, or something like it, though none of the judges seems to have agreed. In any event, though, the real complaint about the closures has nothing whatever to do with race discrimination – which is what lends this case a distinctly straw-clutching unreality.

The real problem with this approach to law – politics continued by whatever legal means are necessary – is the debilitating effect it has on politics, and on democracy itself. Most people agree, if challenged, that local democracy is sick, and should be revived. We agree power is too centralised, and ought to be devolved. There’s absolutely no point in thinking that, though, if you’re happy with councils’ decisions being constantly at risk from purely tactical legal challenges, in a continual game of jenga. Ultimately that has a chilling effect on local policy-making.

We have to accept, in a democracy, that politicians will make decisions we don’t like. If we can’t, and instead turn increasingly to tactical legalism in effect as a replacement for politics, we’ll deserve a less political, more centralised and less democratic society.

Thanks to Paul Dillane, who directed me to the document.