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:
(i)
national security must be defined narrowly as "national
security creating a situation of necessity".
(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 http://interactive.cabinetoffice.gov.uk/documents/security/national_security_strategy.pdf Back
65
http://interactive.cabinetoffice.gov.uk/documents/security/national_security_strategy.pdf 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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