Consent and Children: First Principles

This post is about the legal reasoning in the decision of the High Court in Bell v Tavistock. It is not about the appropriateness or effectiveness of the hormone therapy given to children that that case concerned. I have no competence in relation to the latter factual question. The purpose of this post is to as dispassionately as possible set down the relevant principles. I shall not seek to address all of the nonsense said about the case online. The conclusion is that although the result may be right, the reasoning of the court is not.

Our Bodies

Our bodies are our own. As an adult, I can consent to others doing things to my body that are not necessarily beneficial: an ear piercing, a tattoo, or the infliction of pain. If I consent, no wrong is committed.

Conversely, if I do not consent others cannot do things to my body even if they are beneficial. So, if I object on religious grounds to a blood transfusion, any attempt to force one upon me would be a battery. The law could then be used to order anyone who tried to stop.

Children

Children are different. A question arises as to when they can consent in the way that an adult can.

A child of, say, seven cannot validly consent to many of the things an adult can. So, a child cannot validly consent to having a tattoo, an ear piercing or the infliction of pain. There is nobody who can validly consent to these things on behalf of the child either. If the parent and child agree that it should have a face tattoo, it would be a battery to do so. The ear piercing of young children is a battery, regardless of the parents’ views.  A child is not a parent’s chattel.

If a child requires medical treatment (eg stitches in a gashed knee or a blood transfusion) and they cannot themselves consent (as a very young infant most obviously cannot) then their parent may do so on their behalf. If the parent withholds consent to beneficial treatment, as has happened in relation to those who object to blood transfusions on religious grounds, a court may instead act for the child.

For older children, a question may arise as to whether their consent suffices. So, the Gillick case concerned the prescription of contraception to under 16s. The parent, Mrs Gillick, argued that her consent was necessary. The court rejected this on the basis that the consent of a child with sufficient understanding sufficed.

Bell v Tavistock

Proceedings for judicial review were brought concerning the practice of Tavistock NHS Trust of prescribing puberty blockers to children who experience gender dysphoria. The claim was brought to stop the treatment.

From the first principles above, two issues arise, that need to be differentiated.

  1. Is the treatment in the best interests of the child?
  2. Does the child have the competence to consent to the treatment?

If the treatment is not in the child’s best interests, nobody can validly consent to it. Not parent, child or court. It is like a face tattoo.

If the treatment is in the best interests of the child, then a child with sufficient understanding should be able to consent without the consent of an adult. If they lack such understanding, and it is in their best interests, then as with a blood transfusion, a competent person who is responsible for them, usually a parent, can consent on their behalf.

In a case such as this, it is easy to confuse these two issues. Whether the treatment is, as a matter of objective fact, in the best interests of the child is dependent upon that child being able to make an informed choice about the life they wish to lead. If the child doesn’t wish the treatment, then (unlike with a blood transfusion) it is not in their best interests to proceed. If they do wish to have the treatment, the issue arises as to whether their assessment of their best interests is accurate. We all of us, adults and children, subsequently regret many of the decisions we make. To what extent are we able to trust that this child’s self-understanding is sufficient that we can be sufficiently certain that the treatment is in their best interests?

Reasoning

The court in Bell characterised the issue before it as follows

The court in this case was concerned with the legal requirements for obtaining consent for the carrying out of medical treatment. The court was not concerned with deciding whether there were benefits or disbenefits in treating children with gender dysphoria with puberty blocking drugs. ([3]of summary, see also [9] of judgment.)

In the light of the brief statement of first principles above, this is a mistake.

We can demonstrate the error in two ways.

First consider an extreme hypothetical where we are certain that the treatment is in the best interest of the child. Say the child is suicidal, has repeatedly tried to end his or her life, and has stated that if they are not stopped from proceeding on to puberty that they will kill themselves. Assume that we are certain, beyond peradventure, that this is true. Can consent to this treatment be given, by this child or by a competent adult on their behalf?

I suggest that the answer is plainly yes.

Second, if the issue were genuinely about consent, if we were certain that the treatment is  genuinely beneficial, then Gillick competent children should be able to consent to it, or competent adults should be able to do so on their behalf. But the conclusion of the judges is that it was “highly unlikely” that a child 13 or under could consent, and doubtful whether a child aged 14 or 15 could do so.

Why did the court think that children could not validly consent? Because of a potential lack of “understanding of the immediate and long-term consequences of the treatment, the limited evidence available as to its efficacy or purpose, the fact that the vast majority of patients proceed to the use of cross-sex hormones, and its potential life changing consequences for a child.” But these factors, if accepted, go to show that the child lacks the self understanding to assess whether the treatment is in their long term interests, and as a result makes us unable to conclude that it is in fact in their best interests.

Why?

If the court’s reasoning is, as I suggest, mistaken, why is this so?

The first reason is that this is the way the case was argued by counsel. Both sides argued the case on the basis that it was about capacity to consent.

The second reason, and perhaps the reason why the claimants put the claim in this way, is that capacity to consent is a legal issue for the courts and the law. A medical practitioner does not get to decide whether an 8 year old can consent to a blood transfusion. The law determines this question.

In determining a question of whether a medical treatment is beneficial, however, the courts place great weight on medical opinion. Judges are not experts in blood transfusions. This deference is not, however, absolute. In the context of liability for negligence, for example, it is no longer sufficient to show that a body of professional opinion supports a treatment. That body of opinion must be reasonable.  

Is it wrong?

Despite these criticisms, I am not certain that the result reached in Bell v Tavistock Trust is wrong. I urge those interested to read the case itself, and the court’s review of the evidence the Tavistock Trust relied upon to show the efficacy of the treatment. The court repeatedly states that the lack of data produced for good outcomes was “surprising”. The Tavistock Trust’s treatment of children in its care was, on my reading of these facts, shocking. The better reading of the result is that on the facts of the case the treatment being given was not in the child’s best interests.

That does not mean that this treatment may not sometimes be in the best interests of some children. Again, that factual question is not one I am competent to answer.

Rules, Law and the Virus

“If you want to know the law and nothing else, you must look at it as a bad man.” – OW Holmes, The Path of Law

Last night the Prime Minister set down a number of rules of conduct to be followed during the Coronavirus pandemic. This has prompted two responses that I think are misconceived. “How is this to be enforced?” and “This offends the rule of law.”

OW Holmes thought that what distinguished law from morality was the presence of a sanction for breach. This explained why he thought the appropriate perspective was that of the bad man, who cared nought for morality, but cared about sanctions just as much as anyone else.

This perspective misses the importance of rules for guiding our conduct. Even in a society of angels, we need rules, as is demonstrated by the latest pandemic. Should I still go to work? Can I go to the pub? How often can I go out? Can I still visit my family? On our own, answers to these questions may be unclear. We also face a collective action problem: is there any point in my choosing to stay at home if nobody else is?

All of us need rules to guide us. Where do rules come from? Sometimes they arise by convention, such as the rule that men do not wear a hat in church, or (perhaps more pertinently) that we say “bless you” when somebody else sneezes.

Conventional rules are however slow to develop, and may be so open-textured as to provide inadequate guidance. So, we need someone with authority to posit the rules for us. This may be a legislature, the producer of a game such as Monopoly, or a business such as Waitrose when it stipulates that only the elderly or vulnerable may shop at certain hours.

Further to think that rules work because of the possibility of sanctions is (as a matter of observable fact) implausible. There are around 125,000 police officers in the UK. That is far too small a number to ensure that a recalcitrant population of 66 million comply with any social distancing rules (or indeed all the other legal obligations to which we are subject). Rules work because we internalise them. We use them in deciding how to act. Very few people (fortunately) are like Holmes’ bad man. We want to comply with the rules. We just need to know what they are.

In order for rules to work as regulation, it is important for them to be “bright lines”, expressed in terms people can understand. Vague talk of “social distancing” doesn’t suffice. Telling people to stay at home, only travel to work when absolutely necessary, shop for necessaries as infrequently as possible, take one form of exercise per day alone or with a member of your household, does this.

It is best if important rules (such as these) are posited in primary legislation, following green papers, multiple debates in the legislative chamber, public scrutiny, and so on. In an emergency however, the only body able to posit rules with sufficient speed is the government. And that is what they have done. No other body possesses the authority to have done this. It would be optimal if no further police powers or enforcement measures ever prove necessary (although the Prime Minister stated that they will be forthcoming). The best thing now to happen would be for all of us to internalise the rules, and follow them.

Although all posited laws are rules, not all rules are laws. If we all know what the rules are the moral pressure to comply with them becomes very strong (as the owner of Sports Direct, Mr Mike Ashley, discovered when he initially stated that he would keep his stores open). The posited laws of England can be interpreted by the courts. The rules posited by the government yesterday are not like that. Those demanding further clarity are, missing the point of them. Use them yourself.

The “rule of law” is about the importance of being ruled by rules posited in advance, that enable us to guide our conduct, rather than our being ruled by the choices of others (police, judges, government officials) with power over us. The rules set down yesterday are a demonstration of the importance of that ideal, not a violation of it.

 

Don’t Vote Tactically

Say you lived in a society with a First Past the Post voting system. Say at the last election the Evil Party won with 11 million votes. Second came the Slightly Less Evil Party with 10 million votes. After them came a variety of Not At All Evil parties with 9 million votes.

 

How should you vote this time?

 

If you vote tactically, as millions of your fellow citizens did last time and do in every election, you should vote Slightly Less Evil. After all, if the only possible results are Evil or Slightly Less Evil choose the lesser.

 

But it is this tactical calculation that both Evil parties rely upon. If nobody voted tactically at all, and instead voted for the best of the Not At All Evil parties on offer, one of them would win. Maybe not this time, but at some point in the future.

 

The problem with tactical voting in situations like this is that we can all get locked into a choice between Evil and Slightly Less Evil. Even if we think that we should determine our vote by some kind of utilitarian calculus, supporting one form of Evil where it is less bad than the alternative (I do not), longterm tactical voting is counterproductive. Longterm the best tactic is not to vote tactically this time. Elections are not one offs, and tactical voting may leave us trapped between two awful options forever.

 

Vote Not At All Evil.

 

[Any relation of this post to any real world choice in the 2019 UK General Election is purely coincidental.]

How to Remain

If, like me, you wish the UK to remain a Member of the European Union how could it be done? How could Brexit be ended, with a good outcome?

 

At some level Brexit can never be defeated. There will always be some, such as Mr Nigel Farage, who will passionately favour and argue for Brexit come what may.  If however there is a majority of the country that would prefer Remain over any of the other available options, how can this be achieved in a way that is perceived as fair by those who voted for, or still support, Brexit?

 

The most powerful argument that still persists for Brexit is that the 2016 referendum should be respected, and so should be carried out, regardless of the merits of the case. The major flaw with this argument, which was not apparent to me at the time of the 2016 referendum, is that when Remain is contrasted with any specific form of Brexit (from a Farage style no deal, through Johnson’s hard leave, May’s customs union, to staying within both the customs union and the single market) its majority evaporates. Remain beats any real world Brexit. Only when Brexit’s varieties are aggregated does it beat the concrete option of Remain. This is because as the “democratic sovereignty” of the UK is increased by its disentaglement from international entanglements, so the economic cost increases. This is one reason why those who voted Remain feel there is no democratic mandate for Johnson’s deal, and so are irreconcilable to it. There was no majority for any actual real world Brexit outcome.

 

So, in order to overcome the argument that the referendum must be respected, another countervailing democratic vote is required that shows that Remain is more popular than any specific form Brexit may take. This is the only way of reconciling those who can be reconciled to a remain result that they do not prefer.

 

This leaves two options.

 

First is the victory in a General Election of a party explicitly advocating remain. At the moment, this seems unlikely.

 

Second is another referendum.

 

The Labour party’s current policy is to renegotiate its own form of Brexit and put this to the test against Remain in a referendum.

 

This is not a plausible way of bringing Brexit to an end. Many of the Labour shadow cabinet explicitly favour remain of any other option. The shadow foreign secretary has stated that she would campaign for remain against any deal negotiated by her government. When compared to remain, a “soft brexit” option negotiated by a Labour government would only receive the support of the small majority of those who favour Brexit within the Labour party.  Remain would easily win any such referendum. It is a policy that enables the Labour party to be unified, but it is not one that will ever reconcile those who oppose it to a remain result. Brexit as the dominant political issue will continue, drowning out everything else.

 

In the end therefore, we will need a referendum either where a number of Brexit outcomes are put, or (less ideally) where a deal negotiated by a government that genuinely favours Brexit is pitted against Remain.

 

There is, of course, another way of ending Brexit, although not a good one. A large General Election victory by a party favouring a specific form of it.

 

 

Cooper-Letwin II May Not Work

Politically, the installation of a temporary government with the sole policy of seeking EU27 agreement to the extension of the UK’s membership of the European Union is extremely difficult. Conservative MPs may be willing to vote against their own party in government, but they will be very reluctant to pass a vote of no confidence in it. A necessary condition of there being such a government is that there is an alternative bipartisan candidate for Prime Minister, and the leadership of Labour does not wish to accept the legitimacy of anyone other than Mr Corbyn (who is by definition because of his role not such a person) taking office. The unfortunate label a “government of national unity” has become attached to the idea; which as it would exclude the vast bulk of the Conservative party and the DUP, would have only one policy, and only last until after an election held at the earliest opportunity, is a misnomer. The shadow Home Secretary, echoing others, has rejected a return to the approach of Labour’s first Prime Minister, someone called “Ramsey Mcdonald” (sic).

 

The only alternative way to stop a Johnson government determined to pursue no deal Brexit is through legislation. Mr Stephen Bush, the brightest and best young political commentator, has suggested that if there are the votes for an alternative government, then a fortiori there are the votes for the easier path of legislation requiring the government to seek an extension of article 50. This is so, but there are other good reasons for thinking such an approach will not work.

 

Standing Orders

As Mr Bush rightly says, the Cooper-Letwin Bill, which became the European Union (Withdrawal) Act 2019, serves as a ‘proof of the concept’ that legislation is possible. This Act was passed against government opposition. Although ordinarily the government is in control of the timetabling of business before the Commons, and could choose not to schedule any Opposition or Backbench MP Business Days, MPs could seek to take control of the agenda themselves by tabling, and amending, an Emergency Debate under Standing Order 24 (see the Institute of Government Paper at p 10). The government may oppose the passage of such a Bill through the Commons and Lords, and Brexit supporting MPs might seek to filibuster, but the previous legislation shows that the procedural barriers are not insuperable.

 

Far more serious is Standing Order 48. This prohibits petitions for the spending of public money unless recommended by the Crown. So, whilst a Private Members Bill criminalising or decriminalising certain activity is possible, a Bill requiring the building of a hospital in a local constituency is not. There are good reasons for such a rule. We need the state’s finances to be the responsibility of one entity. Chaos would result if there were  a free for all by MPs enacting legislation for their pet project. Finances need to be taken in the round, with priorities set. Project X may be a good thing, but Project Y may be better.

 

Cooper-Letwin I

The Speaker of the Commons ruled that the Cooper-Letwin Bill, that required the Prime Minister to set down a motion to seek the extension of the UK’s membership of the EU, was not a finance resolution. He did so on the basis that although continuing to be a Member State of the European Union had substantial tax and spending consequences, the government already had the powers to cover such expenditure under the European Union (Withdrawal) Act 2018.

 

The enacted version of the Cooper-Letwin Bill neither required the government to agree an extension, nor to change “exit day”. Instead it drew a distinction between “seeking” (ie asking for) and “agreeing”  an extension (see ss1(6). In this way it did not require further expenditure because it did not require the government to agree to whatever the EU27 offered. Instead it merely required the government to ask, thereby not in fact compelling it to extend. And if the government did agree to an extension, the costs of that were already covered by the earlier legislation.

 

Johnson

This means that an enactment along the same lines as Cooper-Letwin I will not work. A Johnson government might, with reluctance, be compelled to ask for an extension, but if an offer of one were to come back from the EU27, with or without conditions, it could respond “no thanks.”

 

Only an enactment requiring the government to agree to an extension can work, and such an Act would be a finance measure contrary to SO48.

 

Amend or Suspend?

 

Of course, Standing Orders have been amended or suspended in the past. It has been claimed that to disapply SO48 requires the consent of the Crown (see p 7), and it is true that in the past this has only been done where such consent has been given.

 

Whilst I do not agree with Mr Stephen Laws QC that it would be appropriate for a government to withhold Royal Assent from a Bill passed without government assent to an amendment to Standing Order 48, I do agree that such a Bill would be, put at its lowest, a dramatic change of procedure,

 

What is clear is that legislation of the form of the original Cooper-Letwin Bill will not force a determined government to stop a no deal Brexit. Legislation of a kind never before enacted will be required. The original Cooper-Letwin Bill was reliant upon a majority of one.

 

A Constitutional Crisis?

We do not have a constitutional crisis. Court orders are obeyed by the government. Legislation is passed and given effect to by the courts. What the law is is clear, and is obeyed by the various constitutive elements of the state. Widespread civil disobedience has not occurred.

 

What we have is a political crisis. This is caused by the existence of a Commons majority opposed to the central policy of the government, but that same Commons being unwilling to put in its place a government whose central policy has majority support. This is caused by the party system: the policy with majority support is found across parties but not within the largest.

 

Instead of attempting legislation that may not work, MPs should work together to temporarily replace the government for the purpose of the election that is coming soon in any event. Whether they have the political bravery to do so may be doubted.

Boris Johnson’s Duty to Resign

If there were an election tomorrow, and the main opposition party won a landslide victory, what would the duty of the current Prime Minister be?

 

No statute anywhere tells us. Certainly not the Fixed-term Parliaments Act, which says nothing about the issue.

 

The answer is however clear: he must resign. He must resign because he no longer has the confidence of the Commons and another person, in this example the leader of the opposition, is better placed to do so. This rule is found in Convention, not the posited law. It was this Convention that caused Gordon Brown to resign in 2010, before him John Major in 1997 and before that every other Prime Minister who lost the confidence of the Commons when another was better placed.

 

In some cases it may be unclear whether the Prime Minister has lost the confidence of the Commons, and so a vote is held to test the matter, as happened in December 1923. But what he or she must do after losing such a vote is not set down in any statute or other posited law anywhere.

 

The Fixed-term Parliaments Act

 

On the front-page of today’s Times Dr Catherine Haddon of the Institute for government is quoted as saying

In terms of a strict reading of the [Fixed-terms Parliaments Act] Boris is not required to resign. It is completely silent on all of this. The onus is on the incumbent Prime Minister – they get to choose whether they resign. If they do not it is hard for a new government to be formed without dragging the Queen into politics.

This statement is extremely misleading. It is true that the Fixed-term Parliaments Act is silent as to the Prime Minister’s duty to resign in favour of another better placed to command the confidence of the Commons. That is because it is legislation concerned with fixing Parliaments, not Governments (see its name). It is silent, just as is the Fisheries Act 1981 or the Contagious Disease Act 1864, because it concerns something else.
This blog began life four years ago to deal with this serious, and I thought dangerous, misreading of the Fixed-term Parliaments Act. It is a topic I have felt the need to return to.

 

The correct position is set out in the Cabinet Manual and in the House of Commons Public Administration and Constitutional Affairs Committee Report on the Act (see pp 18-25). A Prime Minister who does not have the confidence of the Commons when another is better placed must resign.

Conventions are unenforceable

If a Prime Minister were to defy Convention, and refuse to quit as the Times story suggests, and reports in the Telegraph claimed the Prime Minister’s advisor Mr Dominic Cummings has stated, what could be done?

 

Conventions are unenforceable. Indeed, courts cannot authoritatively rule upon them (save where they come up as an issue of fact as happened in the Spider Memos Case, and as questions of foreign law often do).

 

If a Prime Minister were so to disgrace his office by refusing to resign, destroying representative democracy in the United Kingdom, the only recourse middle aged conservative people such as myself personally have is to take to the streets. You will have to join me.

 

Confidence Motions

As the PACAC report on the Act makes clear, all that the Fixed-term Parliaments Act does in relation to a vote of no confidence is fix the form of it for purposes of starting the clock towards a General Election. It does not state what a vote of no confidence is, the form it must take, or what the Prime Minister should do if one is passed.

 

In order to leave the Prime Minister no option but to resign it must be clear that there is someone else better placed to command the confidence of the Commons. If there is a doubt about that the incumbent may say “ok, I don’t have the confidence of the majority, but nobody else does either, so I can continue, at least on a caretaker basis.”

 

If a vanilla no confidence motion in Johnson were passed (eg “this House has no confidence in Her Majesty’s Government”) the incumbent could, with some plausibility, claim that he did not have to resign if there were nobody else better placed. The Leader of the Opposition is not only unpopular with MPs from other parties but with many from his own, and it may be that there is a majority opposed to his being Prime Minister under any circumstances.

 

Stopping no deal Brexit

How could the legislature stop a determined Johnson government from pursuing a no deal Brexit?

 

The first method is legislation, a form of which I suggested here. Although some Conservative MPs may prefer this option it is difficult. First the government is in control of the legislature’s tabling of legislation. Second, even if a friendly Commons speaker were to defy Convention and allow legislation to be put, it would face stiff opposition in the Commons and Lords and it may be doubted whether it could be passed with sufficient speed.

 

The second and easier method is to pass a Confidence motion. This does not have to be in the form necessitated by the Fixed-term Parliaments Act. The government, by Convention, must make time for an opposition confidence motion. If it (completely outrageously) insisted that this could only be put forward in the form set out in the Act, the opposition could do so and it should be amended.

 

A motion of the form suggested below, clearly demonstrates the Commons’ lack of confidence in the Prime Minister, puts forward a person who does command the confidence of the House, and would not trigger the Fixed-term Parliaments Act as it is in a different form from the words used there

 

“This House, not wishing a General Election and wishing to stop a no deal-Brexit, has no confidence in her Majesty’s Government, and calls for the formation of a new Government led by the member for [X}.”

The person who then became Prime Minister could do so on a temporary basis for one purpose: seeking a further extension of UK membership of the European Union, in order for there to be a General Election or other vote. Who that person should be is of secondary importance (and indeed could be settled in the debate on the motion). MPs need however to start discussing names,

The Monarch

In our constitution today, the person of the Monarch is almost entirely symbolic. Although some powers are formally carried out through her, she is just a pen.

 

What if a motion of the above form were passed, and a Prime Minister so forgot himself so as to defy it, and stay in post? What should the monarch do?

 

In such extraordinary circumstances, she should dismiss him, and call on the person who commands the confidence of the House.

 

 

 

Assange, Extradition and Human Rights

Mr Julian Assange was arrested yesterday after the Ecuadorian government withdrew the asylum they had given him in their embassy, thereby depriving him of the immunity they had conferred upon him from arrest. He was first arrested for failing to attend court  on 29 June 2012 in contravention of his bail conditions. He was then further arrested on behalf of US authorities under an extradition warrant under section 73 of the Extradition Act 2003.

 

The shadow Home Secretary has intervened urging the Prime Minister to block the extradition of Mr Assange to the United States on human rights grounds,  calls echoed by the Leader of the Opposition and the Shadow Lord Chancellor. The purpose of this post is to explain why, legally, this cannot be done. Ironically, the best hope Mr Assange now has of avoiding extradition to the US is if the Swedish authorities apply for him to be extradited there for other offences.

 

The Extradition Act 2003

The United States is a “category 2” country for the purposes of the Extradition Act 2003. In almost all respects, the decision whether to grant extradition is a matter for the courts, and not for the Secretary of State. In particular it is for the judge, not the Secretary of State, to decide whether extradition may be denied on human rights grounds. This is for good reasons that are illustrated by the Assange case itself. It is best to have cases like this decided by rules set down dispassionately in advance and adjudicated upon by judges, rather than through the discretion of politicians whose choices may be influenced by considerations unrelated to the justice of the case. We need clear rules of extradition that may be quickly applied. If the UK wishes those who are suspected of violating its criminal law to be tried here, and not to be able to flee to other jurisdictions to escape sanction, comity requires that we extradite to other countries those accused of offences there. There need to be safeguards in place (for example ensuring that any person extradited will obtain a fair trial) but we do not wish the extradition hearing to enable the accused to be able to run all the same substantive arguments as to his innocence as he would in the criminal trial (thereby obtaining two bites of the justice cherry, and encouraging flight).

 

The Indictment

Under the doctrine of specialty, a person extradited to stand trial may only be tried for those offences specified, and not for any other pre-extradition offences.  The offence alleged in the US indictment is that of conspiring with Chelsea Manning to obtain unauthorised access to information held on a computer holding information of the United States classified as “secret”. Hacking.

 

In the United Kingdom, it would similarly be an offence to conspire to commit the unauthorised obtaining of data held on a computer contrary to section 1 of the Computer Misuse Act 1990 (this is of significance, as we shall see).

 

The Role of the Judge

The first issue for the judge is to determine whether the offence on the warrant is an extradition offence (we will not extradite for, say, road traffic offences, or for breaches of esoteric offences we do not recognise).

 

An extradition offence is one  that is both an offence in the UK and the country seeking extradition. Further that offence must carry a term of imprisonment of 12 months or longer. The maximum prison sentence for the UK equivalent offence is 2 years. This “dual criminality” test here seems satisfied.

 

Second the court must consider if any of the bars to extradition apply: double jeopardy, passage of time, if the real motive for the prosecution is in fact to punish the defendant for another reason such as political belief, hostage-taking considerations, and the forum seeking extradition is inappropriate for reasons of justice.

 

It may be that some will argue that the motivation for prosecuting Mr Assange is for his political beliefs, but this seems hard to sustain. It is his alleged role in the hacking that is the concern, not his libertarian views.

 

This last requirement (the forum) is the only one possibly applicable, but is itself carefully defined. The essential questions are whether the United States is the appropriate forum for any trial (it plainly is) and whether such a trial would be unfair on the defendant? It was on this basis that Mr Lauri Love (another alleged hacker) successfully resisted extradition to the United States, because of his physical and mental fitness to be extradited. As far as is known, no equivalent consideration applies to Mr Assange, but his condition after seven years confined to the Ecuadorian embassy may not be good.

 

Third for some countries  the court must conclude that there is evidence which would be sufficient to make a case requiring an answer if there were a summary trail of an information against him. This however is not required for many states, including the United States.

 

Human Rights

The third requirement is that the extradition must be compatible with accused’s Convention rights as defined by the Human Rights Act. Most obviously, if the accused would not be afforded a fair trial extradition would be refused under article 6. It was  on this basis of the accused’s human rights that in 2012 Theresa May as Home Secretary refused the extradition of Mr Gary McKinnon’s to the United States on the basis of his article 2 right to life (there was a risk of suicide were he to be extradited). However, this power to decline on human rights grounds was (rightly) transferred to the courts by the Crime and Courts Act 2013, reducing the Secretary of State’s role.

 

The most relevant Convention Right applicable to Mr Assange is Article 10 (freedom of expression). After all, Mr Assange’s motive was to disseminate information through Wikileaks, which he then did. Would extradition to the United States violate his right to freedom of expression?

 

Given the “dual criminality” rule, it is hard to understand how it could. If Mr Assange were to be tried for equivalent offences in the United Kingdom, would the court interpret the Computer Misuse Act to permit this kind of hacking, or declare that that Act is incompatible with the Human Rights Act? This seems implausible. Mr Assange is not simply charged with publishing information obtained illegally by Chelsea Manning, but with conspiring to obtain unauthorised information from a computer system. This is not required by freedom of expression.

 

The Secretary of State

The extradition process is now “substantially judicialised“. The Secretary of State’s role is now limited to considering whether he is prohibited from allowing extradition on the basis of the death penalty, specialty, or earlier extradition to the UK. None of these apply here, and so if the court makes an order for extradition the Secretary of State must comply.

 

The calls by newspapers and politicians for the government to act to prevent extradition of Mr Assange are therefore misconceived at best. This is a matter for the courts, and on its face all the conditions for extradition are met.

 

Sweden

There is however one way in which Mr Assange might avoid extradition to the United States.

 

Originally, Mr Assange had sought asylum in order to avoid a European Arrest Warrant from Swedish authorities in relation to rape allegations. This warrant is no longer extant, but the proceedings may recommence.

 

Where the Secretary of State receives competing extradition request he may order one request to be deferred until the other has been disposed of. The relevant considerations include the seriousness of the offences, where they were committed and the date when each request was received. Rape is a more serious offence than hacking, and the original Swedish warrant was seven years earlier.

 

If Mr Assange were extradited to Sweden, he could not be extradited from there to the United States for offences the UK would not also extradite him for (an aspect of the specialty rule). He could not therefore be any worse off. Sweden’s extradition treaty with the United States is differently worded from that between the US and UK, and prohibits extradition for an “offense connected with a political offense”. Mr Assange’s alleged hacking may be said to be covered by this wording, in a way that it is not under the UK legislation.

 

Ironically therefore, once Mr Asasange has served his punishment in the United Kingdom for skipping bail, his best hope for avoiding extradition to the United States is that he is extradited to Sweden first.

Royal Assent and Brexit

Brexit is a feast for constitutional lawyers. Royal Assent to Bills that have passed both Houses and how exactly it is given, including the Great Seal Act 1884, is not normally the kind of detail that most lawyers, even those who are specialists, carry around in their heads. Royal Assent has been, for centuries, a formality. Why worry about the details of this formal flummery?

 

It has now been argued by Professor Finnis that were the European Union (Withdrawal) (No 5) Bill to pass both houses, it would be legitimate for the government to withhold Royal Assent.  This follows on from his suggestion that the passing of such a Bill should be prevented by the government choosing to prorogue Parliament. I have previously addressed the importance of not dismissing Finnis’ arguments on the basis of some of the other (offensive) views he holds.

 

Finnis’ Argument

The crux of Finnis’ argument is that the Commons, and in particular its speaker, is behaving illegitimately. Ordinarily, the government is in control of the legislation that is presented to the Commons. This is for very good reasons. The government, aided by a professional civil service, is able to take an holistic view of law and expenditure. Allowing MPs control of the legislative process gives rise to the danger that majorities will be constructed for inconsistent and incoherent things. There may be a majority for extra public spending, no larger deficit and lower taxes for example. A single entity, the government, must make the hard choices, and if the Commons doesn’t like them, its remedy is a vote of no confidence requiring the government to be replaced by another.

 

There are, admittedly, Private Members Bills, but these are allocated limited time, cannot cover matters requiring further expenditure, and are small in number. They usually cover such crucial matters as the regulation of sunbeds and the control of horses.

 

Finnis argues that the European Union (Withdrawal) (No 5) Bill is illegitimate in two ways. First it seeks to take away decision making from the government in the conduct of international relations, second it will impose a charge on the public purse without government approval. (The latter is somewhat doubtful, but the necessary European elections would not be cost free). If the Commons wishes to pursue these goals its correct course would be to pass a vote of no confidence and find a different set of ministers prepared to pursue the objectives in the Bill. Its refusal to do so, whilst taking on tasks that are properly the government’s, justifies the exceptional steps of proroguing Parliament or withholding Royal Assent. Or so he argues.

 

The Crown and the Monarch

One distraction, about which Finnis is correct, is in relation to the Monarch. In the modern era, we need to distinguish between the Crown (the institution) and the Monarch (the person). The former is many centuries old and will last as long as the State. The latter is Elizabeth II, a youthful 92. It is the Crown that gives Royal Assent, not the Monarch the person. The Monarch is nowadays no more than a pen. In almost all circumstances where she exercises any legal powers she now does so in accordance with the advice of the relevant minister. Where it is inappropriate for such advice to be definitive (as it is in deciding who to appoint as Prime Minister) she now does so in accordance with a rule (whomsoever the Commons has already determined has the confidence of a majority).

 

Royal Assent is not performed by the Queen alone. The Bill first goes to the Lord Chancellor, and she needs the Great Seal. The details of this are unnecessary. The relevant other officers of the Crown (who are members of the government) could prevent the pen (the Queen) from giving Royal Assent.

 

The only option for the current Monarch if asked to do something to which she had a profound moral objection would be abdication, not refusal.

 

Royal Assent

Is it conceivable that Royal Assent could be legitimately refused in any circumstances? Again, I think it is best to concede to Finnis that there may be highly unusual cases where ,between the passing of a Bill through both Houses and the decision whether to give Royal Assent, circumstances have dramatically and unexpectedly changed where the enactment of the Bill would be inappropriate.

 

Ordinarily however, and for hundreds of years, Royal Assent has just been a formality. In the United States the President has exercised an analogous “pocket veto” power in relation to  Bills. This may be thought legitimate in that system because the President has his own democratic mandate independent of Congress. The UK government has no such separate mandate. Its democratic legitimacy is only sourced from the Commons.

 

Confidence

If any government did try to withhold Royal Assent from a Bill (save in the ultra rare change of circumstances situation above) the response of the Commons would be swift. The government would lose a vote of confidence and be swiftly replaced.

 

The only reason why Finnis’ argument is of relevance is because of lack of time. Votes of confidence, and the process of coalescing around a candidate for Prime Minister who commands majority support takes time, especially where as now no party has a majority in the Commons. If a Bill needs to be passed urgently, as one requiring delay to Brexit or more sensibly changing the default to revoke possibly would, a rogue government could prevent it altogether by pocketing the Bill for the brief period necessary.

 

It is important therefore for it to be said loudly and clearly that this is illegitimate. Yes, ordinarily the government is in charge of legislation before the Commons because it can take an holistic view, but that is only because that is what the Commons itself ordinarily thinks best. Where, as now, our democratically elected body takes, exceptionally, a different view, that is legitimate because it itself is the body mandated by the voters to take that decision. The formal details of the Royal Assent Act 1967 or the Great Seal Act 1884 are irrelevant.

Is Labour Responsible for Brexit?

The economist Professor Simon Wren-Lewis argues today that Brexit is an “entirely Tory failure” for which Labour has no responsibility.  He adopts the same argument as that employed by the polemicist Mr Owen Jones that because Labour has never at any stage had sufficient votes to make a difference to whether, say, article 50 was triggered or not, its votes one way or the other did not matter. Labour could not have removed the government in power, and so is not responsible for what has occurred. (Precisely the same argument has been employed by those who have defended the UK’s participation in the second Gulf War: the United States would have gone ahead anyway regardless of the UK’s position).

 

Let us assume, arguendo that this is true. Let it be assumed that it would have made no difference whether, from the outset, Labour had campaigned against triggering article 50, had strenuously argued for freedom of movement and remaining in the single market, had campaigned vigorously for a people’s vote, or were now arguing to revoke article 50. Does that make this “an entirely Tory failure”?

 

Causation, Contribution, and Responsibility

To cause something is to make a difference. Lawyers are familiar with this as the “but for” test for factual causation. “But for X, Y would not have happened.”

 

To contribute to something is to be one factor which, in combination with other things, was sufficient to cause an outcome.

 

All causes contribute, but not all contributions cause.

 

Some necessary conditions make very small contributions to eventual outcomes because so many other things also have to have happened. This is captured in the proverb

For want of a nail the shoe was lost.
For want of a shoe the horse was lost.
For want of a horse the rider was lost.
For want of a rider the message was lost.
For want of a message the battle was lost.
For want of a battle the kingdom was lost.
And all for the want of a horseshoe nail.

 

The moral question is whether responsibility is determined by causation or contribution? Is it digital (if you cause you’re responsible) or analogue (you’re responsible to the degree you contributed)?

 

Voting

Voting is helpful both in enabling us to see the difference between contribution and causation, and in helping us to understand which matters for purposes of responsibility.

 

Say there is a first past the post election where there are two candidates. Candidate 1 receives 100,000 votes. Candidate 2  5,000. Candidate 1 is duly elected.

 

What, in terms of votes, caused the victory?

 

We could say that 5,001 votes caused his election (as without that number he would not have been elected). This does not refer to any of the actual votes, but to the number sufficient to win.

 

Or we could say that 95,000 votes caused his election, as if we took that number away he would no longer have been elected. This refers to any set of 95,000 actual votes cast.

 

No individual vote caused the election of candidate 1. Each contributed.

 

If, say, the victorious candidate turns out to be a disaster, who is responsible for his election? Can each individual voter who cast a vote in favour argue “I am not responsible as my vote made no difference.” If they could no voter is responsible, as no individual vote made a difference.

 

The correct position is that each voter is responsible according to their degree of contribution. Children are right when they object to voting that it rarely “makes a difference” but that doesn’t matter for responsibility. Everyone who failed to vote against the successful candidate also made a contribution, even though they too may have made no difference (say only 50 people who could have didn’t vote).

 

Say the successful candidate had won by a single vote. Also assume that some of the votes were cast in blocks of varying sizes, so that Boss A controlled 100 votes, and Boss B 500 votes. As the result was carried by a single vote, does that mean that Boss A and Boss B were equally responsible? The correct position is no, Boss B made five times the contribution to the outcome that Boss A made, and is proportionately more responsible. The person who cast a single vote in such circumstances may have made a difference to the outcome, but only made a very small contribution, and so has a correspondingly small share of the responsibility.

 

Labour and Brexit

The answer to the counterfactual question of what would have happened if Labour had opposed Brexit more strenuously is unknowable. Its contribution has however been substantial. Labour MPs overwhelmingly backed the Brexit referendum, they voted under a three line whip to trigger article 50, and have failed to support a second referendum. Labour has made a substantial contribution to Brexit, and as a result shares a large part of the responsibility. Uncomfortably for its supporters, if you have lent your support to one of the party’s responsible, you too have contributed, and are also responsible.

 

That does not mean that Labour is solely or even largely responsible. The contribution of the government in power has, of course, been greater still. If Theresa May had been hit by a bus in 2016 Brexit would still have happened, but that does not mean that her contribution to it has not been very great. What the relevant degrees of contribution are is, however, incapable of proof, as, unlike with the simple example of voting, we have no method of measurement.

 

 

 

 

 

 

 

 

 

Brexit: The End Game

In a rational world, where actors behave according to their stated preferences, May’s deal should pass next week.

 

The Withdrawal Agreement we have is non-negotiable, and is *given Brexit* a good deal for the UK. For all those MPs who either support Brexit or although opposing it accept the result of the referendum, the rational course is to vote for it. A healthy majority.

 

The Political Declaration is all still to be agreed, and although those who favour a closer or more distant relationship with the EU may object to it, they can either argue their case at the relevant time, or support a change after the deal is struck. The Withdrawal Agreement is forever, the future relationship can always be changed.

 

But, that is not the world we live in. The Labour opposition, although having no substantive objection to the Withdrawal Agreement will vote against May’s deal, and for good party political tactical reasons would oppose any conceivable deal she proposed. As things stand, only a handful of die hard Lexiteers will back her.

 

A majority of the Conservative “European Research Group” (sic) oppose the Withdrawal Agreement because the guarantee of there being no hard border in Ireland limits the UK’s future ability to enter trade deals with third party states whilst also having no border between the mainland and Northern Ireland. They therefore oppose the only sensible Brexit there will ever be in their lifetimes.

 

So, if as seems likely at the time of writing, the government fails to pass the Meaningful Vote approving its deal through the Commons at the third attempt, what next?

 

Avoiding No Deal

There are currently two ways of avoiding a no deal Brexit on Friday 29 March. The first is revocation of its article 50 notification by the UK. This requires legislation (the arguments to the contrary are so feeble as to be unworthy of examination). Although emergency primary legislation can and has been passed speedily in the past (a day suffices), this has been possible because unopposed. Legislation to revoke would be passionately opposed in both the Commons and the Lords. There is also, as things stand, at most around 100 MPs who currently favour this option. Lack of time and political will rule it out.

 

The second is delay. This requires no legislation, but does require EU27 agreement.  Donald Tusk, the President of the European Council yesterday,  wholly predictably, ruled out the Prime Minister’s request for a short delay for no discernible purpose. Such a short delay, up until the European elections, would only be available if the current deal is approved.

 

The choice is  the UK’s. It must be the party to make any request, the EU27 will not be making an offer without one. The UK could make a successful request for a longer extension if it were for a purpose (such as a referendum, a General Election, or possibly merely a change in government to pursue a new policy). Such a request would entail the UK participating in European Parliamentary elections, and having MEPs (which will cause problems with reallocated UK seats, but probably not insuperable ones). Any responsible UK government must do this before Friday if the deal is not approved by Parliament.

 

May’s Position

In the Commons yesterday Mrs May made it clear  that she is not prepared to serve as Prime Minister if Brexit is delayed beyond 30 June. I believe her.

 

If she refused to put in a request for a long delay she would quickly face a vote of no confidence. There are sufficient Tory MPs who realise that no deal Brexit would be a disaster that this vote would pass. May knows that as well.

 

Her only course therefore would either be to resign immediately upon losing the Meaningful Vote, recommending a Prime Minister commanding majority support prepared to request such a delay, or (more probably) herself request a long delay in order for there to be a change in Government, whilst agreeing to serve for such time until Conservative leadership elections took place.

 

It may be that it was for that reason that she made the apparently counterproductive statement last night blaming the Commons for the delay to Brexit, whilst making no apparent appeal to win over waverers. She knows she has lost.

 

Can any Deal pass?

A long delay doesn’t change the arithmetic or the necessary features of the deal. Any conceivable Withdrawal Agreement looks near identical to this one, and the ERG will oppose it. The opposition will oppose it for the same (good, tactical) reasons it does now. There is no majority possible. in a year’s time employing the same tactics.

 

What if there were an election and Labour won a majority? Could it pass an alternative Brexit deal? Again, the Conservatives would oppose any such deal on the same basis that Labour opposes this one: because proposed by their opponents. Labour would have as large, possibly larger, group of rebel MPs who opposed the deal from the opposite perspective of the ERG: they favour Remain or something much closer to it than Labour would offer.

 

So, the only way a deal could have passed would have been for there to have been a Conservative government with such a large majority that it was not dependent on the ERG’s Brexiteers against Brexit. That majority was what May sought in the general election of 2017, and failed to obtain.

 

The Way Out?

A delay is, however, just a delay. Where will we be in a year?

 

A future government that wishes to pursue Brexit has two options. First it could (as I thought May would) decouple the Withdrawal Agreement and the Political Declaration, offering Parliament the option of the guidelines it wishes to pursue on the future relationship. Whether this will cause a significant number of opposition votes to change may be doubted. Second it could offer a confirmatory referendum as the price for Parliament approving the deal (with the options being between Remain and Agreed Leave).

 

If the deal does not pass this week, the Prime Minister will at most be a caretaker by its end. Come what May.