Joint Committee on the Draft Constitutional Renewal Bill Written Evidence

Supplementary memorandum by The Corner House (Ev 38)

  1.  The Corner House would like to bring to the attention of the Joint Committee additional evidence relating to the contradictions between the proposed new powers for the Attorney General at Clauses 12-18 of the Draft Constitutional Renewal Bill and the Government's own national security strategy, published in March 2008.

  2.  As The Corner House has already stated to the Joint Committee, any clarification of how legitimate national security concerns are used to halt a Serious Fraud Office investigation or any prosecution need to be accompanied by strong checks and balances.

  3.  The Cabinet Office's March 2008 national security strategy document stresses the importance of checks and balances. Several provisions in the Bill, however, create the possibility for the executive or any decision-maker to abuse national security arguments.

  4.  To prevent such abuse, The Corner House believes that:


    national security must be defined narrowly as "national security creating a situation of necessity".


    the provision invoking "prejudice to international relations" should be removed.

(i)  National security must be defined narrowly as "national security creating a situation of necessity"

  5.  The Corner House would like to draw the Committee's attention to the Cabinet Office's March 2008 document, The national security strategy of the United Kingdom.[64] This stresses repeatedly the importance of the rule of law and accountable government in maintaining national security. For example:

    "Our approach to national security is clearly grounded in a set of core values. They include human rights, the rule of law, legitimate and accountable government, justice, freedom, tolerance, and opportunity for all". (page 6, emphasis added)

    "At home, our belief in liberty means that new laws to deal with the changing terrorist threat will be balanced with the protection of civil liberties and strong parliamentary and judicial oversight". (page 6, emphasis added)

    "The single biggest positive driver of security within and between states is the presence of legitimate, accountable and capable government operating by the rule of law". (page 19, emphasis added)

    "[Tackling global instability, conflict, and failed and fragile states] means advocating and helping deliver the ingredients of long-term healthy societies, from the rule of law, civil society and legitimate, accountable and effective government". (page 34, emphasis added)

  6.  As pointed out in our first submission, The Corner House believes that Clause 13, in particular the issuing of a certificate by a Minister as being held to be conclusive evidence that a direction to stop any prosecution or a Serious Fraud Office investigation was necessary, removes judicial oversight of such directions, while the exclusions in Clause 14 (3) in reports to Parliament weaken parliamentary oversight.

  7.  The Cabinet Office's national security strategy document also identifies "challenges to the rules-based international system" as one of the main drivers of insecurity:

    "Overseas, our belief in the rule of law means we will support a rules-based approach to international affairs, under which issues are resolved wherever possible through discussion and due process, with the use of force as a last resort". (page 6, emphasis added)

    "We believe that a multilateral approach in particular a rules-based approach led by international institutions brings not only greater effectiveness but also, crucially, greater legitimacy". (page 7, emphasis added)

    "... how well it [the international system] succeeds in... dealing with states that violate international laws and norms, will be one of the most significant factors in both global security and the United Kingdom's national security over the coming decades". (page 17).

  8.  Yet Clauses 12-18 will have the effect of enabling the UK Government to override the UK's obligations under at least one multilateral, rules-based approach to international affairs, that of the OECD Anti-Bribery Convention.

  9.  This would seem to conflict with the government's own stated analysis of the importance of tackling corruption to maintain national security. Indeed, the Cabinet Office's national security strategy highlights the problems corruption can cause and stresses the government's commitment to tackling it:

    "Over the long term, we can expect that ... democracy will continue to spread, and governance to improve, with resulting benefits for global security as well as for well-being and prosperity. But it will be a long and uneven path, and dictatorship, corruption, weak or absent government, and civil war will remain a feature of the landscape over the coming decades". (page 20, emphasis added)

    "We will continue to play a leading role in wider international efforts to fight corruption ... (page 53)

  10.  Part 2 of the draft Constitutional Renewal Bill, therefore, despite being titled "Safeguarding of national security", significantly contradicts and undermines the government's own national security strategy.

  11.  As stressed in its earlier submission, The Corner House believes that any statutory clarification of how national security decisions are taken in relation to directions to halt prosecutions and SFO investigations should include an appropriately restrictive definition of national security, which confines it to a definite and immediate threat. We therefore suggest replacing "national security" with "national security creating a situation of necessity".

  12.  This is especially important given ongoing policy proposals by the Government and others to broaden the understanding of national security to encompass a wide range of threats and risks beyond those made by another state to the UK's territory. Such threats and risks would include transnational organised crime; infectious diseases (particularly influenza), extreme weather and coastal flooding; man-made emergencies; climate change; competition for energy; poverty, inequality, and poor governance; and migration and demographic changes.[65]

  13.  While these threats and risks undermine many people's individual and collective security and their rights to life and livelihood, and have the potential to undermine those of many more, the extent to which they should be considered as national security threats is still a matter of debate.

  14.  Given that understandings of national security are currently in flux, it is especially important that powers pertaining to national security are restricted and subject to checks and balances.

(ii)  The exception invoking "prejudice to international relations" should be removed

  15.  Given the importance of parliamentary oversight, highlighted by the Cabinet Office's own national security strategy, it is important that full explanations be given to Parliament on any direction to stop a prosecution or SFO investigation on the grounds of national security.

  16.  The draft Bill's inclusion of "prejudice to international relations" as a reason not to provide full information to Parliament needs, The Corner House believes, to be removed, both at Clause 14 (3) (b)[66] and Clause 17 (3).[67]

  17.  The definition of international relations at Clause 17 (3) is so broad as to allow the Government (or any decision-maker) effectively to exclude information that may be highly relevant to Parliament's ability to hold the Executive (or any decision-maker) to account. If this exception for "prejudice to international relations is maintained, it will become extremely difficult, if not impossible, for Parliament to disentangle whether a decision to halt a Serious Fraud Office investigation or any prosecution is based on national security grounds alone or has, in fact, been mingled not only with concerns about international relations but also with commercial and partisan interests.

  18.  As the Joint Committee will be aware, consideration of damage to international relations is expressly forbidden as a ground for discontinuing a prosecution or investigation under Article 5 of the OECD Anti-Bribery Convention. The inclusion of this exception will therefore create the suspicion that the Government is not committed to upholding Article 5 of the OECD Convention despite its assurances to the contrary to the OECD. Such suspicion will undermine still further public trust and belief in the Government's decisions and actions invoking national security.

12 June 2008

64 Back

65 Back

66   14(3) "Nothing in subsection (2) requires information to be included in a report [to Parliament] if the Attorney General is satisfied that-... (b) the inclusion of the information would prejudice national security or would seriously prejudice international relations. Back

67   17(3) ... international relations are prejudiced if any of the following are prejudiced-relations between the United Kingdom and another other State; relations between the United Kingdom and any international organisation or international court; the interests of the United Kingdom abroad; the promotion or protection by the United Kingdom of its interests abroad. Back

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