Thread by @carolecadwalla

LIVE: Starting now in the Royal Courts of Justice in the presence of Justice Swift

@allthecitizens & @lordstras & @BenPBradshaw & @RhonddaBryant & @CarolineLucas & @AlynSmith & @PJWheatcroft

Vs

The Prime Minister

‘It turns on whether there a relevant obligation under article 3,’ says the judge interrupting Richard Hermer’s opening submission

‘Presently limited info in public do@sin about Russian involvement. But info there is is that we have subjected to determined attacks designed to undermine the integrity of our elections’ - Richard Hermer

‘The UK remains one of Russia’s top targets & there is prima facile evidence that Russia sought to interfere in elections in 2016, 2017 & 2019’

‘There is credible evidence use of bots & trolls & so called ‘hack & leak’

Hermer quotes evidence supplied by Lord Ricketts in support of ISC’s findings that there is a real threat to democracy which represents a national security risk

Hermer now quoting the press conference from the Russia Report ‘The outrage is not that there is no evidence of interference, the outrage it’s that no-one wanted to know’

Now a discussion of Article 3 of Human Rights Act: the right ‘to hold free elections which will ensure free expression of the opinion of the people’ It’s the interpretation that is at the heart of the case

‘At a convention level, there is no correct way to stand for election..there is no proscribed way to hold an election’ - Justice Swift

‘Precisely my Lord’ - Hermer

Hermer citing egs where court ruled on ‘positive obligations’ under Article 3 to investigate violations.

‘There is prima facie evidence that the defendant has not shown concern or investigated allegations’

https://twitter.com/carolinelucas/status/1407264737281327108

‘The focus is an attack of our sovereignty by a hostile foreign state.

It’s unremarkable that there’s no case law on the obligation to investigate foreign interference. As Lord Ricketts says, evidence of this only began to emerge since 2016.’ - Hermer

‘To protect future elections, it is essential to know what happened in the past. These are the concerns of intelligence community & reflected by Lord Ricketts. This is not a lawyers’ point. It is the concerns of legitimate individuals in a position to know’

‘A claimant does not have to show that past interference altered outcome of an election. That would be an impossible task.’

‘Just a moment,’ says judge. ‘What If someone made a case that the electoral law is just not up to scratch? Would that be an obligation to investigate?’

‘What I’m struggling with is the obligation under article 3’ says judge.

‘My lord I take you through the obligations of state to take positive measures to protect integrity of elections’ - Hermer

‘Undoubtedly an obligation to protect the election’ - Hermer

‘What about the shock jock spreading misinformation?’ - Justice Swift

‘No it’s about a hostile foreign section weaponising’

‘It doesn’t matter how many adjectives that you use I don’t see the difference between them’

‘It is completely different. We are talking about a hostile foreign state deliberately attacking our elections’ - Hermer

The judge appears to be arguing TalkRadio & the Kremlin are equal in law

‘We would contend that the mandate to protect elections could be given to the security services. It’s not an absence of legislation, it’s of political will’

‘What is it you say that the PM has failed to do? Direction to the security services?’

‘We are slightly in the dark..’

‘I’m asking what your case is?’

‘This is about protection of the realm.’

‘We are saying that PM can & should MI5 should take the lead as stated by ISC & Lord Ricketts’

‘Your case needs to identify that unlawful act or unlawful omission…it seems to me the failure is to promote or enact legislation’ - judge

‘We say the legislation already exists’

‘Can I just do a final stab?’ - Hermer

‘No. I don’t think you need to do that.’ - Lord Justice Swift

There is much one could say. But not now.

James Eadie QC for government has now taken the floor.

‘Intensely political subject for parliament…the legislation is to protect right to vote, right to stand. It’s a narrow scope. Strasbourg very clear certain limited obligations’

‘What case law establishes, the narrow core rights that you need to have domestic framework to protect those core rights, a state cannot disregard its own laws. But there’s no support in case law for this at all’

So to recap: the claimants say there is a positive obligation to investigate foreign state interference under article 3 of Human Rights Law: right to a free & fair election. The government says Article 3 is about narrow rights on right to vote, right to stand.

‘If my learned friend is right that there is a positive obligation to protect against disinformation & so on, one would expect to see that at the level of the Council of Europe across a wide range of states. We see none of that.’

Breaking for lunch.

And we’re back: ‘Does it matter who is alleged to have interfered?’ - judge

Eadie: ‘No, it could be any third party.’

‘The Security Services Act is under the authority of the Sec of State. But control of Security Services is in control of the director general. And there is really sensitivity about investigation of this kind, into elections.

‘How could this direction even work?’

‘Each state comes to this with their own history, the key question is that full extent of rights extended? We say it can’t be because the core principles are all about protecting the integrity of the electoral process.’ - Hermer

‘The Strasbourg court is applying a broad definition & flexibility outside the ambit of voting rights. We submit this is not fit for disposal at the permission stage. It requires thoughtful deliberation at judicial review’ - Hermer

‘This is not a case prefaced on the adequacy of an investigation that has already taken place. Rather it’s premised on fact that no investigation has taken place. That is why ISC & claimants who include 2 FCO ministers & Lord Ricketts say an investigation is essential’ - Hermer

‘This is a responsibility that should be given to MI5. And the reason it hasn’t is a lack of political direction’ - Hermer

Judge: ‘How would it work in practice? To task the security services without primary legislation would appear to be a bold act.’

‘A pressure group @allthecitizens & a number of parliamentarians have challenged the govt on failure to protect free & fair elections…The claimants contend credible evidence on attempts to interfere since at least 2016…’ judge now summing up.

‘I do not consider any legal argument exists under the first ground. There is no case law that supports this.’

‘There is a right to vote & a right to stand as a candidate. But the specifics of those rights have a wide margin of appreciation.’

‘Instead the court of human rights recognise that these should necessarily be a matter for nations to decide. This cautious & restricted approach to Article 3 has direct consequences to the reach of investigative obligations’

‘The complainants case exists at the level of politics not of law. ‘

‘Now to contend with the assertion that there is no fit framework to adequately protect elections. I put it to Mr Hermer that a claim formulated in this way falls outside the scope of section 6 of the Human Rights Act.’

‘Mr Hermer points out the PM could have directed the Security Services. This has to be seen as a failure to legislate. Mr Hermer’s attempt to frame this as a failure to direct the Security Services fails..not least because of the important powers of the director general’

‘I reject his attempt to reformulate the claim.’

‘For all these reasons, permission is refused’