Select Committee on Justice Minutes of Evidence

Examination of Witnesses (Questions 80-83)


10 JUNE 2008

  Q80  Chairman: I asked you if that was a serious possibility, that you could see yourself turning to the Prime Minister, who tells you whether you can go to Cabinet or not, and saying, "No, Prime Minister, I have looked at the security considerations and my judgment is that they are not as important as you think they are, or the consequence is not as severe, therefore in the public interest I have decided to bring this prosecution or investigation to an end".

  Baroness Scotland of Asthal: It is absolutely, and I think this Committee has to understand this, the nature of an Attorney's role and that is why Francis Bacon said, "It is the most painfullest job in the realm and an Attorney has to be ready to stand stalwart for the rule of law and stalwart in relation to what the public interest is". If we are absolutely frank, it is going to be clear that, of course, any Attorney would have to take into account the collective government view of the national interest and the advantage is that the Attorney would have access to all the information at the highest possible level to inform that judgment. At the end of the day, Chairman, that is why you have an Attorney.

  Q81  Chairman: But if the rule of law is so fundamental to this decision, why do Clauses 12 and 13 contain an ouster clause to prevent judicial review of this decision?

  Baroness Scotland of Asthal: Because, and I think you will have seen the law in relation to this, the courts understand that this is not a question of pure law, it is a question of judgment as to what is in the national interest. If it assists, I am very happy to remind the Committee what was said in relation to this. The court said this: "The question of whether something is in the interests of national security is not a question of law, it is a matter of judgment and policy. Under the constitution of the United Kingdom and most other countries, decisions as to whether something is or is not in the interests of national security are not a matter for judicial decision, they are entrusted to the Executive". That was Lord Hoffmann.

  Q82  Chairman: I am very familiar with that judgment, but does that not underline that the courts, if this ouster clause was not there, would not lightly trespass on the area of judgment about national security, but would exercise any discretion about whether to allow judicial review to pursue any further in full recognition of that fact, so why do you need to preclude judicial review in this way, which has been described by one critic as "brazenly seeking to evade the recent developments of constitutional principle"?

  Baroness Scotland of Asthal: I do not think that you do because, of course, any Attorney taking such a decision would have to take that decision on a reasonable basis and not do so capriciously or irrationally and, therefore, of course it would be for the courts to determine whether in those circumstances the process which was adopted by the Attorney in formulating the decision was or was not subject to judicial review. In terms of the certification we are very interested to hear, for instance, what this Committee may say about the granting of a certificate. In looking at this issue again, and I say this from my own point of view, I think the provision in the draft Bill suggests that a minister should be able to take that decision. My own view, and the Government's view, may well be that it would be preferable to make it clear that that would be a decision made not by a secretary of state but, in fact, by the Attorney.

  Q83  Chairman: That is the Attorney deciding whether to exercise ouster for the Attorney's own exercise of power.

  Baroness Scotland of Asthal: But it would be the Attorney exercising that role on behalf of the government independently as the identified guardian of the public interest and, if we change the oath, the rule of law.

  Chairman: Whether that is sustainable goes to the heart of the matter, which will continue to be discussed both in this Committee and the Joint Committee. Thank you very much indeed, Attorney General and Mr Jones, for assisting us this afternoon.

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