The Supreme Court’s fumbled judgment in the Julian Assange extradition case throws up an interesting anomaly. If you’re a fusty, old-fashioned, nation-state, Euro-sceptic, sovereignty of Parliament sort of chap you’ll be backing Assange, the freewheeling, libertarian Kremlin-supported citizen of the world and destroyer of national security.
Ukip politicians, for example, have rushed to the WikiLeaks founder’s cause since he is defending all they hold dear – or at least battling against all they despise: the European Union and internationalist regulation trampling on our treasured freedoms right back to Magna Carta.
Now Lord Mance has joined these strange bedfellows thanks to his minority judgment in the Supreme Court case.
To explain. This, in brief, is the majority view in the Supreme Court: prosecutors in Sweden have made an application to have Assange extradited to question him about sex allegations; UK law (Section 2(2) of the Extradition Act 2003) says extradition applications under the European arrest warrant (EAW) should be made by a judicial authority. The EU’s Framework Decision that governs EAWs also uses the words “judicial authority”.
Thus Article 1: “(1) The European arrest warrant is a judicial decision issued by a Member State with a view to the arrest and surrender by another Member State of a requested person…”
But international practice has on occasions been that European arrest warrants have been accepted when issued by prosecutors – as in the case of Sweden’s against Assange. The issuing authority’s national laws allow that to happen so the responding states have accepted the warrants.
The result is that contradictory laws and procedures are in existence between member states that are supposed to be singing from the same songbook.
How to resolve this? Lord Phillips, backed by the majority in the Supreme Court Assange case, wheeled in the 1969 Vienna convention on the law of treaties (pdf).This says under Article 31(3) (on the “general rule of interpretation”) that in interpreting a treaty (such as the EU’s Framework Agreement on arrest warrants) “there shall be taken into account … (b) any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation”.
Since under The Framework Decision EAW’s had been accepted from prosecutors by some member states that principle now, in effect, becomes part of the treaty.
So “judicial authority” now means prosecutors as well as judges. The laxer standard applies to all signatories even though they did not sign up to that principle – since it wasn’t there to sign up to!
It is this argument that was put by Phillips in his judgment but not put to Assange’s lawyers earlier – hence a further delay in the case so they can have an opportunity to rebut it.
‘The definition of a ‘judicial authority’ is exactly that. In this country, it is the Bow Street magistrates’ court. In other countries, there are various different authorities such as magistrates and judges who normally issue extradition warrants. Those are the people who will execute a European arrest warrant’ Bob Ainsworth
Lord Mance, however, did grapple with it and popped another complication into the pot. What about parliamentary sovereignty?
Broadly this doctrine would suggest that the law should be the law as passed by the sovereign British Parliament and according to the intentions of that Parliament. Parliamentary sovereignty diehards would see that as the decisive argument. The British Act says “judicial authority” so British courts should only accept warrants from judicial authorities.
Mance introduced into the debate that old warhorse of purposive judicial interpretation, Pepper v Hart  AC 593 (explained here) to suggest that statements in Parliament could be used to clarify the Act wherever it is ambiguous.
So, Home Office minister Bob Ainsworth said on 9 January 2003: “We expect that European arrest warrants will be issued in future by exactly the same authorities as issue warrants under the current arrest procedures. We intend to do that in the United Kingdom. There is no reason to suppose that our intentions are different from those of any other European country.”
On another occasion, pressed on the matter by MP Gwyneth Dunwoody, he said: “The definition of a ‘judicial authority’ is exactly that. In this country, it is the Bow Street magistrates’ court. In other countries, there are various different authorities such as magistrates and judges who normally issue extradition warrants. Those are the people who will execute a European arrest warrant.”
No mention of prosecutors there, so, the Mance argument runs, it should be possible to assume from those words, as well as the words of the act, that Parliament intended that European arrest warrants would be issued by judges, courts and the like, not prosecutors.
Lord Phillips denied the parliamentary statements were admissible under Pepper v Hart. He prefers the view “that the text of much European legislation is arrived at more through a process of political compromise, so that individual words may be chosen less for their legal certainty than for their political acceptability”.
And that is the nub of the issue. We are talking here about due process; a man’s freedom is in the balance. These matters should be decided, one would have thought, on the basis of deep-seated legal (and moral) principles, not on “words chosen less for their legal certainty than for political acceptability”.
So was there a compromise when the Framework Decision was made? Was the word “prosecutors” discussed but simply not included in the wording on the basis that it wouldn’t be politically acceptable – but on a nod and a wink, that it could be added in later?
Phillips is asking us to accept a bizarre fiction, that when the UK parliamentarians voted on the Extradition Act, they did not vote for the words on the face of the Bill before them or on the basis of the minister’s words which confirmed the meaning of the Bill; they voted for the uncertain possibility that some authorities in some other legal jurisdictions might fabricate a new law between themselves, one that said that people other than judicial authorities would be able to issue, and have accepted, these warrants.
They were voting, apparently for a mystical invisible clause in the Bill that would suddenly become enacted and immediately in force when people in other member states happened to act in a particular way.
Lord Phillips is asking rather too much of our legislators to believe that, unbidden, they will have in mind Article 31(3) of the Vienna Convention whenever passing legislation relating to international relations. Lord Phillips is a man of profound legal understanding with a long and honourable legal career; parliamentarians for the most part are not. But even Lord Phillips arrived at this abstruse point only very late in the day (hence the renewed delay in the case) after having heard intense legal argument and after having racked his brain to find some way of justifying sending this meddlesome Assange fellow to his Swedish fate.
Funnily enough, on this occasion the Government has not rushed to condemn this “unaccountable judge” trampling on the will of Parliament. When it comes to Assange, Lord Phillips and the Government seem to be as one.
More: Theresa May and the European Arrest Warrant: Examines worries about the EAW point by point
Also: Can Pepper v Hart save Assange? (The answer in the event was ‘No’ but this may interest those looking at Mance’s minority judgment)
Since this posting the UK Supreme Court has refused to hear a further Assange appeal on the Vienna Convention point (14 June 2012). Reasons here