Supplementary memorandum submitted by
Professor Jeffrey Jowell QC
This statement concerns the Attorney General's
explanation, right at the end of her evidence, of the need for
the ouster clause (Qq 81-83). She cited Lord Hoffmann's words
that decisions about national security "are not matters for
judicial decision. They are matters for the executive".
The case is (as the Chair well knew) Secretary
of State for Home Affairs v Rehman [2001] UKHL 47 at [50] and
see again Lord Hoffmann's further statement at [62].
It is important to note, however, that Lord
Hoffmann also said in that case that "This does not mean
that the whole decision [on national security] ... is surrendered
to the Home Secretary". He went on at [54] to say that the
factual basis for the decision could be examined by the court
(the question of whether there was any evidence to support the
decision on national security); as could the issue of its reasonableness,
or whether fundamental human rights were in issue (which they
were not in Rehman).
Lords Slynn and Steyn (with whom Lord Hutton
agreed) were much less emphatic in that case that as to whether
national security was or was not a matter wholly reserved for
the executive. Indeed Lord Steyn said, citing much case-law, that
"It is well established in the case law that issues of national
security do not fall beyond the competence of the courts".
(at [31]). Lord Slynn said that although national security was
"primarily" a matter for the executive (at [17]), the
minister's decision was open to review especially on the basis
of lack of evidence (at [24] and [25]).
And of course Lord Hoffmann directy challenged
the government's judgment on national security in the later case
of Belmarsh Prison (which I cite in my written evidence at footnote
9).
12 June 2008
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