The Corner House response to Joint Committee report on the Draft Constitutional Renewal Bill
Lack of checks and balances when criminal prosecutions halted on national security grounds
by The Corner House
first published 31 July 2008
The UK Government published its draft Constitutional Renewal Bill on 25 March 2008. It proposes a statutory right for the Government, through the Attorney General, to halt any criminal prosecution or a Serious Fraud Office investigation on the grounds of national security. The new draft Bill would prevent any judicial review of such a decision, and would provide for little meaningful accountability to Parliament. (The Attorney General is a political appointee, member of the Government and the Government's chief legal adviser; the office also has a legal role, however, in being responsible for all crown or state litigation.)
A parliamentary committee -- the Joint Committee on the Draft Constitutional Renewal Bill -- comprising members of both upper and lower Houses of Parliament was established in April 2008 to assess and scrutinise the draft legislation and to receive oral and written evidence. On 31 July 2008, it issued its report and recommendations on how the draft legislation should be changed. (On 12 August 2008, it published the various submissions it had received.)
One of its several recommendations concerning the role of the Attorney General in prosecutions was that the Attorney General should keep the (non-statutory) power to intervene in prosecutions in general and on national security issues in particular.
But its overall opinion was that little or no change was required with regard to the current functions and role of the Attorney General -- "we question whether there is a need for legislation in respect of the Attorney". The Joint Committee was "not persuaded" that there was any need to separate the Attorney General's combined legal and political functions.
A Corner House press release issued in response to the Joint Committee's response asserted that:
The Corner House is disappointed that in its report the Joint Committee has been more conservative than the Government in many respects and has opted to keep the status quo with regard to the Attorney General.
The Corner House welcomes the Committee's support for abolishing or transferring consent for individual prosecutions. However, we are deeply concerned that the Committee has not supported a statutory oath for the Attorney General to uphold the rule of law.
We also believe that the proposal that the Attorney should keep a right to intervene in prosecutions in general and on national security issues in particular is contentious and unsatisfactory. The Committee, like the Government, has presupposed that the Attorney has a power to direct in relation to prosecutions -- a power which has never been used or properly debated in Parliament and which the current Director of Public Prosecutions is himself 'agnostic' as to whether it exists or not.
The Committee has dodged many of the contentious issues around intervening on grounds of national security, such as precluding judicial scrutiny and using 'international relations' as a reason for failing to provide information to Parliament by arguing that the powers of the Attorney in relation to intervening in prosecutions should remain non-statutory. While this is clearly preferable to having draconian and controversial powers on the statute book, it maintains the current status quo and an underlying lack of clarity about what checks and balances should be applied when prosecutions are halted on national security grounds.
A week earlier on 24 June 2008, another Parliamentary Committee had also issued a report on the draft Bill. In contrast to the Joint Commitee, the Justice Committee affirmed that the Attorney General's combined legal and political roles remained a major problem. It stated in a press release:
"The Bill has been called more of a 'constitutional retreat bill' than a constitutional renewal bill . . . [I]t gives greater power to the Executive and it does not add to transparency."
This report's main criticism was that the draft Bill does not address the "fundamental problem" concerning the Attorney General's dual political and legal role: the draft legislation "still combines the function of chief legal adviser to the Government with the role of Government minister". To maintain public confidence and transparency, the Justice Committee argued that these legal and political functions must be split.
The Justice Committee also stated "there is no justification for giving the Attorney General the [formal statutory] power to halt investigations by the Serious Fraud Office". It concluded that "where there are genuine national security grounds for stopping a prosecution . . . it is the Prime Minister who makes that judgment and the Prime Minister who should be accountable to Parliament for it."
David Pannick QC subsequently wrote an article in The Times commenting on the Justice Committee report, stressing that "in a constitutional democracy, no government should award itself unreviewable powers":
"Judicial review does not just serve the important purpose of enabling citizens to test the legality of a controversial decision. It also encourages the maintenance of high standards in government. Nothing concentrates the mind of a minister or an attorney-general more than the knowledge that the decision may have to be explained and justified before independent judges. The Attorney-General's duty to report to Parliament is no substitute for judicial review. The judiciary, not other politicians, has the function of assessing whether the decision is a lawful one."
Pannick also indicated that a statutory provision purporting to exclude judicial control could in fact be held to be unlawful.