“The law officers take the view that the application of the Government’s nuclear
deterrence policy does not involve an infringement of either domestic or international
law”!! Undeniably that at least has the merit of saving a very considerable sum in
court costs ! But no pretense here then of this being a matter about which the Law
Officers advice must remain confidential. No hint either that the “evidentiary
sufficiency” test, nor even the “public interest” prosecutorial code tests, have been
properly and scrupulously applied. Rather, a simple, bald and bare-faced statement
that ‘we the Law Officers’ say that, in our considered view, the Government’s nuclear
defence policy is ‘lawful, under both domestic and international law ‘– end of story.
However, with the greatest respect, that is an example of Government will exercised
by the law of force, and rests upon considerations particularly familiar to all manner
of night-club bouncers up and down this land, and lies a million miles away from any
notion of government subject to the rule, let alone force, of law instead.
In light of these kinds of attitudes, I submit, it is no longer in the least surprising that
the Appeals Committee of the House of Lords (as in Gouriet’s Case), in respect to
the Attorney-General’s exorbitant discretion to control all access to the royal courts
for the purpose of obtaining simple justice under public law - rejects even the limited
notion of applying the principle of a jurisdiction for the judicial review of even the
excessive exercise of executive power, as an essential underpinning of the principle
of government subject to the rule of law. Nor for that matter either, to observe an
executive administration, in such an act of constitutional reform pique, as to revoke
its own prior commitment to legislative reform, when faced with a commonsensical
Commons Committee, committed to seeing genuine and meaningful political
constitutional reform instead.
So then, if the Law Officers are to be held immune to judicial review, where then lies
a practical solution to secure the rule of law ?
“Mercifully our Constitution has, I believe, provided a remedy. It is what I have said
already. If the Attorney-General refuses to give his consent to the enforcement of the
criminal law, then any citizen in the land can come to the courts and ask that the law
be enforced. This is an essential safeguard; for were it not so, the Attorney-General
could, by his veto, saying ‘I do not consent’, make the criminal law of no effect.
Confronted with a powerful subject whom he feared to offend, he could refuse
consent time and time again. Then that subject could disregard the law with
impunity. It would indeed be above the law. This cannot be permitted. To every
subject in this land, no matter how powerful, I would use Thomas Fuller’s words
over 300 years ago:’ Be you never so high, the law is above you’ 1
‘tis a dream avowedly to be wished.
Robert L MANSON
for and on the half of
Institute for Law, Accountability and Peace.
1
Denning MR in Gouriet’s Case (as above) in the Court of Appeal
Gouriet v Union of Post Office Workers [1977] 1 AllER 696 (CA)