Examination of Witnesses (Questions 80-83)|
QC AND JONATHAN
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
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
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