The British government claims to defend basic principles of justice for grave international crimes. So its reaction to arrest warrants issued by independent courts, acting on evidence showing an arguable case, should be straightforward: respect the courts’ rulings even if they cause political embarrassment.
However, the reactions of ministers to the arrest warrant issued, and then withdrawn, by Westminster magistrate's court against Tzipi Livni, the former Foreign Minister of Israel, have been neither straightforward nor edifying. Most embarrassing of all, Patricia Scotland, the Attorney General, gave a speech in Jerusalem on 5 January declaring that the government was “determined that Israel's leaders should always be able to travel freely to the UK.” Her statement leaves the impression that no matter what crimes may have been committed, no matter what British courts may say, ministers will find a way to bypass justice if it suits them. And it is hardly likely that the government will limit its infringements of the rule of law to the case of Israel.
In response to criticism of the warrant against Livni, the government is reportedly considering increasing the Attorney General's power to intervene in cases, giving her the power to approve an arrest warrant issued by a court on the basis of an application by a private party. The crossbench peer and QC David Pannick has called this the “simple” solution, to avoid embarrassing arrest warrants against Israelis or Americans that are unlikely to result in prosecutions, given that the Attorney General already has the power to block the prosecutions themselves.
But these proposals ignore that the power of the Attorney General, a government minister, to intervene in cases is an anomaly in an independent justice system. After a decade of change to comply with European human rights principles, English justice has been dragged into the 21st century, with most ministers losing their power to directly interfere in cases. The Lord Chancellor no longer sits as head of the judiciary and there is a Supreme Court outside the House of Lords. Successive Home Secretaries have been forced, reluctantly, to surrender their powers to intervene on sentencing in individual cases.
The Attorney General is the only remaining minister who can still intervene in individual cases. Soon after taking over as Prime Minister in 2007 Gordon Brown said that the “role of Attorney General which combines legal and ministerial functions needs to change.” He was right: a minister should not have the power to stop prosecutions, especially when they are embarrassing to the government or their allies (as with the Serious Fraud Office investigation into charges of corruption involving Saudi Arabia and BAE). Council of Europe member states, including the UK, agreed a decade ago that the power of governments to give instructions not to prosecute in a specific case “should, in principle, be prohibited”.
Patricia Scotland was supposedly appointed as a reforming Attorney General. Unfortunately no serious reform of the office has taken place; the Attorney General remains a government minister with the power to halt any prosecution of a large number of offences. Some of these offences, such as advertising cancer treatments or failing to erect fencing around a mine, seem merely anachronistic. But crucially the Attorney General retains the power to approve all prosecutions for the key international crimes: torture, crimes against humanity, genocide and war crimes.
If the purpose is to protect the public interest, there is no need to have the Attorney General interfere in cases. Decisions on sensitive prosecutions are made daily by the Director of Public Prosecutions (DPP), who is required to take such decisions both on the basis of the likelihood of conviction (i.e. the evidence) and on the public interest. That is how it should be: an independent prosecutor weighing up the need for prosecution, bearing in mind that where there is evidence of the most serious crimes having taken place, the public interest in prosecution is high. Once the DPP has decided to prosecute, the additional veto granted to the Attorney General, a political figure, adds nothing more than a power to stop prosecutions that are embarrassing to the government. This applies as much for prosecutions of British nationals as of foreign citizens.
Last year, Human Rights Watch revealed evidence of the complicity of British agents in torture by the Pakistani intelligence services. This could and should be investigated as a crime. Any eventual prosecutions could well reveal severe incompetence, at the very least, of government in allowing such complicity to take place. Yet, even if the evidence were overwhelming, prosecutions would require the consent of the Attorney General, a member of the very government that risks political embarrassment from a prosecution.
Britain is in fact the only country in western Europe that permits such naked political interference in the prosecution of international crimes. The solution is not to extend the Attorney General’s power, giving the government the right to meddle in the rulings of the courts themselves. It is to remove the Attorney General's power to interfere altogether, and allow the independent prosecutors and courts to decide, on the basis of the evidence and an impartial view of the public interest, who should be prosecuted for the most serious crimes, whatever their nationality and no matter how embarrassing for the government of the day.
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