Julian Assange, Ukip and Baron Mance in three-in-a-bed legal shocker

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.

Judicial appointments, diversity and merit – an unsquared circle

What is it about the concept of “merit” that is causing such problems in judicial circles? Surely any appointments procedure should be a simple matter of assessing candidates’ merit for the job and then appointing the best one. Unfortunately things just aren’t that easy, as the sixth hearing of the House of Lords Constitution Committee into judicial appointments has found.

The previous week the President of the Supreme Court, Lord Phillips, had asserted that judges should be appointed on merit. No story there, you would think. It’s even enshrined in law with simple elegance. Constitutional Reform Act 2005, Section 63, Subsection 2: “Selection must be solely on merit”. Move on to Section 64, though, and you get this:

“Encouragement of diversity: (1) The [Judicial Appointments] Commission, in performing its functions under this Part, must have regard to the need to encourage diversity in the range of persons available for selection for appointments.”

But keep going to Subsection 2 and you read this: “(2) This section is subject to section 63”. And we know, because we have come in a circle, that section 63 says: “Selection must be solely on merit”.

It is this virtuous yet apparently inconsistent circle that the Constitution Committee witnesses have been dancing around for several months now. It is accepted that we want more diversity in gender, ethnicity “and I suppose, sexual orientation”, as Lord Irvine put it the other week. More of every type of diversity (or individuals with “protected characteristics” as the Equality Act 2010 uncomfortably calls them.) But we keep coming up against this issue of merit.

Lord Judge says ignore Europe on human rights – or does he?

Lord Judge or Lord Phillips. Who is right on whether the UK can “ignore” the European Convention on Human Rights?

Well, let’s get the terms of reference right for a start. The Lord Chief Justice, Lord Judge did not actually tell the Lords Constitution Committee that “Britain can ignore Europe on human rights” as the Times had it. And some of what was said in the hearing into judicial appointments (reported here) has been carelessly misreported and reported out of context.

What Lord Judge was trying to suggest is that UK courts, particularly the Supreme Court, do not have the fearsome constitutional powers ascribed to them by the likes of Lord Neuberger (explained here) – powers that would need to be curbed by politicians having a say in Supreme Court appointments. It is not a Supreme Court in the American sense with the constitutional right to strike down legislation – at least, not because of the Human Rights Act.

Lord Phillips proposes role for Lord Chancellor in Supreme Court judicial appointments

The president of the Supreme Court has offered an olive branch in the debate over judicial appointments with a call for the Lord Chancellor to join the court’s appointments panel – and for the president to lose his role in appointing his successor.

Lord Phillips told the Lords Constitution Committee that the current system allows the Lord Chancellor a veto of appointments but at a late stage in the process. “I would prefer him sitting on the commission [for appointments] so he can provide his input at that point.”

Phillips was asked whether he was uncomfortable in the role of being in charge of the panel choosing his successor, giving the impression of a self-perpetuating clerisy. Yes, he said: “I don’t think as a matter of substance that it is desirable to have the president of the Supreme Court presiding over the choice of his successor. I think it is desirable for him to be consulted … but not sit.” He would welcome a statutory change to that effect.