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Timeline of the legal challenge

3. Government's response: change the law

25 March 2008: Government propose change to law
April-June 2008: Parliamentary Committees respond

 

25 March 2008:
Government proposes to make judicial review impossible in future

Lord Justice Moses and Mr Justice Sullivan said at the end of the two-day judicial review hearing that they would give their judgment as soon as possible. It clearly wasn't soon enough for the Government, however – or perhaps it was too soon.

As The Corner House and Campaign Against Arms Trade were awaiting the judgment, the Government introduced primary legislation in March to Parliament that would, in effect, prevent such a judicial review in future and would significantly increase and concentrate the powers that the Executive (the government) can exercise over the Judiciary (the Courts) and Parliament.

The draft Constitutional Renewal Bill, in a section entitled 'Safeguarding National Security', proposes to create a new statutory power for the Attorney General -- a political appointee, member of the Government and the Government's chief legal adviser, who also has a legal role in being responsible for all crown or state litigation) -- to direct a prosecutor to stop a fraud investigation or any criminal prosecution in order to safeguard 'national security'. The Attorney General's direction would be binding on the prosecutor.

At first sight, this is eminently reasonable and sensible: it is commonly accepted practice that the Government or executive should make national security decisions.

But additional clauses in the draft Bill ensure that no meaningful explanation or accountability need be given to Parliament, the Courts or international bodies when the Government invokes the new power.

A certificate signed by a Government Minister declaring that the direction to stop the fraud investigation or prosecution was necessary would be considered as conclusive evidence of that fact – or a document “purporting” to be such a certificate. This certificate effectively makes scrutiny by the courts impossible, and thus prevents any judicial review when national security is invoked.

The clauses do specify that the Attorney General must report to Parliament on the direction, but allow him/her to leave out any information that could prejudice not only national security but also international relations.

Although 'national security' is not defined in the draft Bill, 'prejudice to international relations' includes:
-relations between the UK and another other state, or international organization or court;
-the interests of the UK abroad;
-the promotion or protection by the UK of its interests abroad.

Sensitive or embarrassing criminal prosecutions and SFO investigations could be halted -- or appear to be halted -- for political reasons. 'National security' could simply be invoked by a politician, the Attorney General, to stop any investigation or prosecution perceived as undesirable, irrespective of whether it really was a threat to national security or the UK's interests.

Had this draft Constitutional Renewal Bill been law since 2004, when the Serious Fraud Office (SFO) began its investigation into alleged corruption in BAE's dealings with Saudi Arabia, the Attorney General could have directed at any moment the SFO Director, an independent prosecutor, to terminate the investigation or not to prosecute. (At present, the Director alone is supposed to make that decision.) The Attorney General's order would have been legally binding on the SFO Director.

CAAT and Corner House lawyers have spelt out the potential dangers of this Bill:

"There is always the risk when national security is relied upon by politicians that it will be elided with the interests of the government, especially where there is no democratic or legal scrutiny of the relevant decision . . .

"There is a serious risk that the opaque and unaccountable decision making process envisaged under the draft Bill could lead to breaches by the UK of its international law obligations, which would be extremely difficult to detect or challenge because the relevant information would never be made public, or available to the Courts [or] Parliament . . .

"[A] powerful criminal who was able to make a credible threat to the UK's national security could thereby escape prosecution."

In practice, this draft Bill would put BAE and the Government above the law.

'The Observer' summed up the Draft Constitutional Renewal Bill as follows:

" . . . the government has drafted legislation to enshrine in law the Attorney General's right to stop criminal proceedings on grounds of 'national security', while surrendering the right to meddle in all other cases. In other words, the government will relinquish a power it never used and strengthen one it has clearly demonstrated it can abuse."

 

April-June 2008:
Parliamentary Committees examine the draft legislation

A parliamentary committee -- the Joint Committee on the Draft Constitutional Renewal Bill -- comprising members of both the House of Commons and the House of Lords was established in April 2008 to assess and scrutinise the draft legislation. It has been gathering oral and written evidence and is due to issue its report and recommendations on how the draft legislation should be changed in July 2008.

Both The Corner House and CAAT sent in written evidence to this Committee. The Corner House submission argued that the draft Bill does not sufficiently protect the independence of prosecutors, which is a fundamental constitutional principal in a democracy. It stressed that granting a statutory power to halt a prosecution or fraud investigation on the grounds of national security with no meaningful checks and balances creates a grave risk of abuse by the Government of national security arguments.

The submission suggested that any decision to halt a prosecution or fraud investigation on national security grounds should be taken by an independent prosecutor (or, if taken by the Attorney General, then an Attorney General who has a statutory obligation of independence, given that the office holder is currently a member of the Government) and must be subject to judicial scrutiny.

The Corner House also argued that national security must be narrowly defined to prevent its abuse. Its submission maintained that safeguarding 'national security' should not be broadened to encompass 'prejudice to international relations', defined as the interests of the United Kingdom abroad, as the draft Bill does as present.

The submission also drew attention to the Government's own March 2008 document "The national security strategy of the United Kingdom", which repeatedly emphasises the importance of "the rule of law", "legitimate and accountable government" and "strong parliamentary and judicial oversight" in maintaining national security. The national security strategy document also expresses support several times for "a rules-based approach to international affairs . . . led by international institutions". Yet if it becomes law as it stands, the Constitutional Renewal Bill would enable the UK Government to override the UK's obligations under a multilateral, rules-based approach to international affairs -- the OECD Anti-bribery Convention.

The Corner House also commissioned a 'legal opinion' (legal advice on a point of law written by a barrister) from top UK constitutional lawyer Professor Jeffrey Jowell QC (Queen's Counsel). He was asked to assesses whether enabling the Attorney General to halt a prosecution or fraud investigation on grounds of national security without judicial scrutiny or parliamentary accountability is constitutional, including being compatible with the Human Rights Act 1998 and with standards of international law.

His 'opinion' outlines what is meant by 'unconstitutional', given that the UK does not have a written constitution; considers the constitutional principles of 'separation of powers' and 'rule of law'; and explores whether decisions on national security can justifiably be exempt from these principles.

He concludes that the Bill's effective prevention of judicial review of a decision invoking national security violates the fundamental constitutional principle of the rule of law, and could be challenged under the Human Rights Act.

In the meantime, however, another Parliamentary Committee, the Justice Committee, issued its report on 24 June 2008 on the draft Bill. It stated in a press release:

“The Bill has been called more of a ‘constitutional retreat bill’ than a constitutional renewal bill . . . [I]t gives greater power to the Executive and it does not add to transparency.”

One of CAAT's and The Corner House's barristers, David Pannick QC, subsequently wrote an article in 'The Times' commenting on the Justice Committee report, stressing that "in a constitutional democracy, no government should award itself unreviewable powers".

"Judicial review does not just serve the important purpose of enabling citizens to test the legality of a controversial decision. It also encourages the maintenance of high standards in government. Nothing concentrates the mind of a minister or an attorney-general more than the knowledge that the decision may have to be explained and justified before independent judges. The Attorney-General’s duty to report to Parliament is no substitute for judicial review. The judiciary, not other politicians, has the function of assessing whether the decision is a lawful one."

Pannick also indicated that a statutory provision purporting to exclude judicial control could in fact be held to be unlawful.

The Corner House and CAAT are requesting the public to write to their MPs to ensure that the problematic provisions in the draft Bill are removed. The groups have also set up an online petition to the Government, asking it to revise the Bill.