Memorandum submitted by Professor Jeffrey
Jowell QC
1. I have expressed my views on the general
subject of the role of the Attorney General in my evidence to
the House of Lords Select Committee on the Constitution.[3]
2. I based my argument in that evidence
upon the constitutional principles outlined in its paragraphs
2-7, which in my view strongly support an end to the Attorney's
political role.
3. In particular, I argued that these days
there is a substantial pool of lawyers of high status who are
sensitive to political considerations and therefore could admirably
fill the role of independent Attorney (as they do in other countries).
Freed of the appearance of political bias, the independent Attorney
could—and should—regularly monitor cabinet and cabinet
committees for consistency with the rule of law.
4. In respect of the view that only a political
Attorney could be properly accountable to Parliament, I argued
that the Attorney's legal advice is not amenable to political
accountability. In respect of her prosecutorial functions, satisfactory
mechanisms could be found for an independent Attorney to be made
adequately accountable to Parliament.
5. In an earlier lecture,[4]
I argued that if the political role of the Attorney were retained
(on the ground of the need to have a lawyer at the heart of government)
then at the least the Attorney ought, like the Lord Chancellor,
to be placed under a statutory duty to uphold the rule of law.
In addition, her oath of office should be revised to reinforce
that duty, and to make clear that she acts in the public interest.
6. I greatly regret that the Draft Bill
does so little to remove the appearance of conflict of interest
which the Attorney's dual legal and political roles will inevitably
attract.
7. I do welcome the removal of some of the
Attorney's consent, prosecutorial and superintendence powers,
especially the abolition of nolle prosequi and the ban on her
direction in individual cases.
8. However, sections 4-6, which deal with
the Attorney's powers over the tenure of the three so-called independent
prosecutorial officers (Director of Public Prosecutions, Serious
Fraud Office and Revenue and Customs Prosecutions) enhance the
appearance, and indeed the realistic possibility, of political
control of the prosecutorial system. The Council of Europe recommends
much more transparent review of the tenure of public prosecutors
than these sections provide.[5]
9. Section 15 emphasises the hierarchical
nature of the relationship between the Attorney and the other
prosecutorial officers by requiring those officers to provide
the Attorney, on request, with information about national security,
under pain of a criminal penalty. This is a most unusual provision
and could permit the improbable situation of a (political) Attorney-General
instituting criminal proceedings against her (independent) DPP!
10. Section 3 requires a protocol for the
running of the prosecution services to be drafted by the Attorney
"in consultation with" the Directors of those services
and laid before Parliament. Although this protocol may usefully
clarify the degree of the Attorney's relationship with the prosecutors,
it is not at all clear whether this protocol is designed to strengthen
or weaken the Attorney's duty to uphold the rule of law (which
is in any event better achieved by means of a specific statutory
duty to that effect). Indeed the Attorney's political predisposition
is reinforced by the provision which requires the protocol to
set out (under section 3(2)(f)) the roles of the Attorney and
the Directors in relation to "criminal justice policy"
( policy surely being a matter for the Minister of Justice).
11. Most concerning is the retention, and
indeed expansion of the Attorney's power to intervene on grounds
of national security (in ways not sufficiently detailed in the
Notes on Clauses), to which I shall devote the rest of this submission.
12. As a general proposition, the constitutional
principle of the separation of powers forbids the executive branch
of government from interfering both in the investigation of crimes
or in decisions whether or not to prosecute. The constitutional
principle of the rule of law also requires our laws to be enforced
where practical. These principles have traditionally been regarded
as open to a degree of elasticity (`selective enforcement') in
exceptional circumstances, one category of which is national security.
13. It is important to note, however, that
in recent years the courts have been anxious to limit the opportunity
for any governmental official to plead national security in the
absence of evidence supporting the fact that national security
is genuinely at risk. This approach accords with an increasingly
rigorous "culture of justification" under which all
public decision-making is required to be based on cogent evidence
and argument.[6]
Three particular developments in respect of the Attorney's role
should be noted:
(a) Whereas in the past the "prerogative"
power of the Crown was considered immune from judicial review,
this is no longer automatically the case.[7]
The Attorney-General's prerogative prosecutorial power (as a Law
Officer of the Crown) is, similarly, now subject to judicial review.
(b) The courts no longer accept the mere
say-so of the government, through the Attorney, that matters of
national security are in jeopardy. Although the courts may or
may not probe deeply into to the credibility of that evidence,
at least some evidence must be produced to justify the Attorney's
claim of risk.[8]
(c) However, in a number of situations, where
the rule of law or fundamental rights (including Convention rights)
are on their face compromised, the Attorney General will be required
to show that her actions are not "disproportionate",
on the basis of a series of structured tests to ensure that the
means justify the ends and the measure is "necessary (and
not merely `desirable') in a democratic society" or "strictly
required by the exigencies of the situation".[9]
14. Another fundamental development, which
well preceded the Human Rights Act 1998, is the assertion, contained
at the core of the rule of law, that access to justice should
not be denied. It has been strongly argued that the ouster of
judicial review may even be unconstitutional, because it violates
the rule of law which is "the ultimate controlling factor
on which our Constitution is based".[10]
At the very least, it has been fully accepted that the courts
will interpret ouster clauses in the narrowest possible way, so
as not to permit any decision that is unlawful (and is thus only
a "purported decision" from judicial scrutiny.[11]
15. In my view sections 12 and 13 of the
Draft Bill fly in the face of the fundamental constitutional principles
of the rule of law and separation of powers. In this respect the
title of the draft bill, "constitutional renewal", misleads.
This is constitutional regression.
16. Section 12 of the Draft Bill provides
that the Attorney has the power (a) to direct the abandonment
of investigations by the Director of the Serious Fraud
Office (SFO) and (b) to direct that any prosecutor
not institute or abandon any legal proceedings.
17. Section 12(1) permits the Attorney to
make such directions "if satisfied that it is necessary to
do so for the purpose of safeguarding national security"
(s.12(1)). This provision provides a very broad discretion to
the Attorney ("if satisfied"), qualified only
by the notion of "necessity" (which may be open
to a test of proportionality but is not clear on the point) coupled
with the purpose of "safeguarding national security".
18. If the decision of an Attorney under
section 12 were open to judicial review, the courts could inquire
into whether the Attorney was genuinely seeking to achieve the
safeguard of national security (however broad that term may be)
and it is at least possible that the courts could scrutinise any
claim of national security to ensure proper justification under
the principle of proportionality.
19. However, section 13 (5) (a) seeks to
prevent any such possibility of judicial review by providing that
a certificate signed by a Minister of the Crown certifying that
the Attorney's direction was "necessary for that purpose"
(ie to safeguard national security) shall be "final and
conclusive". Section 13 (5) (b) provides that even a
document "purporting" to be a such a certificate
shall be received in evidence and treated as being such a certificate
unless the contrary is proved.
20. These provisions brazenly seek to evade
the recent developments of constitutional principle noted in paragraphs
13 and 14 above, although it is still possible that the courts,
under the modern approach, will nevertheless insist that even
that attempt at "judge-proofing" does not override the
fundamental right of any interested person to judicial review
of the Attorney's directions.[12]
21. The draft bill seeks to make up for
the lack of legal accountability of the Attorney's directions
on national security by providing for compensating political accountability.
Section 14(3) requires the Attorney to lay a report before Parliament
on the directions as soon as possible after issuing them.
22. Exceptions to this requirement are provided
in section 14 (3), one of which is concerning. Section 14(3) provides
an exemption if "the Attorney General `is satisfied' that—(b)
`the inclusion of the information would prejudice national security
or would seriously prejudice international relations'".
23. It will not be difficult for the Attorney
to avoid disclosure under this provision because it lets the Attorney
out of disclosing matters which he is satisfied would themselves
be a danger to national security.[13]
Of more concern, however, is that section 14(3) subtly broadens
the purpose of safeguarding national security to include matters
of international relations. This is because under section
17(3) international relations is defined as:
(c) the interests of the United Kingdom abroad,
and
(d) the promotion or protection of the United
Kingdom of its interests abroad.
Under these provisions the Attorney could arguably
refuse to disclose information to Parliament on the ground that
commercial or diplomatic interests abroad, or even the UK's image
abroad, may be damaged by the disclosure. The Attorney would thus
be able to evade Parliamentary control of a decision purportedly
taken for the purpose of safeguarding national security, but in
fact seeking to achieve goals which are extraneous to that purpose.
CONCLUSIONS
1. It is regrettable that the opportunity
was not taken in the Draft Bill to enhance public confidence in
the impartiality of the Attorney General's office by creating
an independent Attorney both to give legal advice to government
and to undertake prosecutorial and other functions.
2. While the removal of some of her prosecutorial
functions will serve to diminish the appearance of political bias
inherent in her role, the present proposals in a number of respects
shift the balance of the Attorney's primary loyalties and modes
of accountability from the legal to the political.
3. The power of the Attorney to safeguard
national security free of judicial oversight or control offends
fundamental constitutional principle.
4. The method of Parliamentary accountability
introduced to oversee the Attorney's directions on national security
are weak, and specifically permit the Attorney to evade accountability
on the basis of considerations irrelevant to national security.
23 May 2008
3 Published as Appendix 3 of the Select Committee's
report Reform of the Office of the Attorney General 7th
Report of Session 2007-08; HL Paper 93). Back
4
Politics and the Law: Constitutional Balance or Institutional
Confusion? JUSTICE / Tom Sargent Lecture, published in JUSTICE
Journal, Nov 2006, p 18, at 28. Back
5
Recommendation 19 (2000), section 5. Back
6
Woolf, Jowell and Le Sueur, de Smith's Judicial Review,
(6th.ed. 2007); chapter 11, entitled: Substantive Review and Justification. Back
7
Council of Civil Service Unions v. Minister for the Civil Service
[1985] A.C. 374. (The GCHQ case). Back
8
Ibid. Back
9
See most graphically in the Belmarsh detention case: A v.Minister
of State for the Home Department [2004] UKHL 56; [2005] 2
A.C. 68. Back
10
Lord Hope in R (on the application of Jackson) v. Attorney
General [2006] A.C. 262 at para. 107. See generally de
Smith's Judicial Review, above, para. 4-015. See also Volume
8(2) of Halsbury's Laws of England (1996), where "the
right to the protection of the law" includes the right of
"unimpeded access to the courts". Back
11
Anisminic Ltd. V. Foreign Compensation Commission [1969]
2 A.C. 147. Back
12
On the authority of re Racal Communications [1980] 2 All
ER 634, where Lord Diplock considered that although judicial decisions
may still be protected under a "conclusive evidence"
clause, that protection would not necessarily extend to decisions
of public officials. Back
13
A similar plea exempted the minister in the GCHQ case, note 4
above. Back
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