John Jackson (London, Mishcon de Reya & Unlock Democracy): There is an astonishingly muddled article by Tom Winsor in today's Finanical Times on the High Court's decision in the SFO/BAE case. Firstly, he has not grasped that clause 40 of Magna Carta ("To no man will we sell, deny or delay right or justice") was a promise by the king as to how his judges would behave in administering royal justice - hardly a definition of judicial independence, as he claims! Though the promise is, nevertheless, an important component of the rule of law.
Secondly, he reveals a worrying attitude towards parliament, when he suggests that a "threat" by a minister to ask parliament to restrict a regulator's powers could be equated with the "threat" made by the Saudi government in the SFO/BAE case.
In 2001, Stephen Byers, the then transport secretary, told me that if I intervened to prevent the administration of Railtrack, the government would ask parliament to legislate my independence away, to stop the rescue. But I was clear that my jurisdiction and independence were conferred with the authority of parliament, not ministers, and only parliament could remove them. Despite Mr Byers' threats, I offered Railtrack a lifeline, but they refused, mistakenly resigned to their fate. Ministers' merely telling Railtrack of their legislative resolve was evidently enough. In parliament on October 24 2005, the government conspicuously celebrated the making of those threats.
A belief by Winsor that it is wrong for a minister to ask parliament to legislate in this fashion is absurd - or ought to be. It would not be only if we are truly in a position in which ministers can persuade parliament to do things which are patently wrong, through the combination of political parties and the whip system, or by any other means. It is worrying if people like Tom Winsor, Britain's Rail Regulator for five years, believe this to be the case. It is also worrying because the rule of law (which is what clause 40 of Magna Carta is about) is under the protection both of the courts and of parliament. It is in that duty which lies on both of them that the potential for conflict, which I have mentioned before, exists.
Tom Winsor (not verified) said:
Mon, 2008-04-21 07:58I disgaree, as you would expect.
As to Magna Carta, my reference to judicial independence is correct. It concerns the behaviour of judges.
My main point was not that it was wrong for a Minister to ask Parliament to legislate on a subject; it was that it was wrong for a Minister to use the threat of legislation - not the fact of legislation - to try to persuade an independent authority to violate his statutory duties.