Potential Further Issues

8.2 NATIONAL SECURITY and NON-JUSTICIABILITY

Contention : That matters touching on the ‘Defence of the Realm’ or the public interest

in the ‘national security’ are non-justiciable by the courts.

165 I have already stipulated to the undeniable rule in the Administrative Court, on the authorities, since at least the decision in the infamous GCHQ case, that certain executive conduct carried out in exercise of prerogative powers at common law, in the fields of national security and the defence of the realm, will be regarded by that Court, in exercise of its discretionary jurisdiction, as beyond its scope for review. This view clearly also reaches now to include several other equally potentially contentious fields of executive conduct, considered especially delicate and sensitive, particularly in the fields of foreign relations and international diplomacy.

166 In many, indeed most, of these cases the ground expressly relied upon for justifying the prohibition on review was the claim that the subject matter was inherently “non-justiciable”, or, which amount to the same thing, non-cognisable before the Courts.

167 This was certainly the reasoning, at least in part, of the very recent decision of that Court in the so-called “CND Case” (The Campaign for Nuclear Disarmament v. The Prime Minister et al [2002] EWHC 2777), the subject matter of which is not entirely unrelated to the present Claim, although the two cases I respectfully submit share little else in terms of the law applicable to each. However, it is obviously important to recognise the extreme forcefulness with which the Court, back in December last year, wanted to distance itself from and exclude any possibility of review of the legal interpretation to be placed on the infamous UN Security Council Resolution 1441. See especially the judgement of Richards J. (@ para. 59[ii] ) :

“ A plain purpose of the present claim is to discourage or inhibit the Government from using armed force against Iraq without a further Security Council resolution. Thus the claim is an attempt to limit the Government’s freedom of movement in relation to the actual use of military force as well as in relation to the exercise of diplomatic affairs and defence. In my view it is unthinkable that the national courts would entertain a challenge to a Government decision to declare war or to authorise the use of armed force against a third country. That is a classic example of a non-justiciable decision. I reject Mr Singh’s submission that it would be permissible in principle to isolate and rule upon legal issues e.g. as to whether the decision was taken in breach of international law. The nature and subject matter of such a decision require it to be treated as an indivisible whole rather than breaking it down into legal, political, military and other components and viewing those components in isolation for the purpose of determining whether they are suited to judicial determination. The same objections of principle apply to an attempt to isolate in advance a potential legal component of a possible future decision with a view to limiting the Government’s freedom of movement when taking the decision itself. “

168 The position taken by Simon-Brown LJ was somewhat distinguishable but nonetheless equally hostile to the notion of the reviewability of Government conduct in the sphere of international diplomacy, even on an application merely for a declaration alone of the legal effect of an instrument of policy to which the Government had publicly bound itself. Mr Ricketts held the office of “Director General for Political Affairs at the Foreign & Commonwealth Office” and gave evidence in the case on behalf of the Crown as to why the Government could not possibly be expected to explain in court what it meant in practice when it said publicly that it would always abide by its international legal obligations and duties (@ para 43):

“ Mr Ricketts’s statement, of course, is directed rather to the reasons why the government for its part should not be required to state its position on the meaning of Resolution 1441 than to why the court should not grant an advisory declaration on the point. Clearly, however, the one follows from the other. The logic is inescapable. On the international plane, as a matter of practical international politics, other States do not make nice distinctions between legal assertions by government and declarations of law by national courts. But, that aside, any declaration by the court would as a matter of practical reality embarrass the government no less than were it to state a definitive view itself. By constitutional convention the government will always comply with decisions of the court. Whatever the court were to declare the instrument to mean, the government could not ignore that ruling or assert some different meaning in its dealings with other States. And, indeed, the objections go further still. Were the court even to embark upon a hearing of the substantive issue the government would be placed in an impossible position. In practice it would be forced to adopt and argue its position before the court, the very thing that Mr Rickets indicates would damage the conduct of our international relations. The objection, in short, is not merely to the court ever granting an advisory declaration, but in addition to the court even embarking on the argument. “

169 All of that aside, however, the only point of relevance as to this entire line of authority is simply that, everything the Administrative Court here had to say about the “non-justiciability” of the claim by CND, is par excellence a reaffirmation of the unwillingness of that Court to exercise, a self-made jurisdiction, so as to subject such a matter as this to examination by way of a “judicial review”, even for merely declaratory relief alone. It is a judge made limitation on the exercise of their common law jurisdiction for administrative law judicial review of executive action.

170 So be it. I do not seek the leave of that, or any other court, to “challenge” or “object” to the administrative law propriety or even legality of “the decision-making process” which led the executive government of this country, to order and cooperate in the act of naked international aggression, whereby last week we, together with the government of the United States, simultaneously invaded the sovereign territory of the Republic of Iraq by the use of land, sea and air forces. I do not seek to “challenge” the administrative legality let alone the ‘procedural propriety’ or 'reasonableness' of that decision making process. Frankly, let me concede, for the sake of argument, that that decision was made with perfect legal rectitude and is beyond error, even if it were not already beyond challenge by way of judicial review. Having thus so “properly” made that decision, I now accuse those political leaders and ministerial executives, named in my informations, who have now acted to carry it out, in all of its bloody consequences, of having thereby committed a crime.

171 Furthermore, not just any mere technical breach of the criminal law, but a violation of the most fundamental norms of customary international behaviour, essential to the preservation of international peace and security and against the undoubted customary laws of all civilised nations, developed down through the years, and which keep this World one step away from Armageddon. I accuse them of having thereby committed a crime against the peace of the World. I accuse them of being “arch-criminals”. It has now become a matter for the exercise of a system for the enforcement of criminal justice, according to the law and by due process. Let the accused criminal defendants be put to their trial, before a jury of their peers, and let justice be done, “though the heavens fall ... let justice be done”, or else let us abandon all pretence that this nation is a civil “democracy” governed by a system subject to the rule of law.

172 In the end the question of this distinction as between, the judge made limits on the jurisdiction of the courts for administrative law judicial review of executive action, on the one hand, and the principle of the rule of law, as a fundamental of the British Constitution, on the other, goes to the very heart of this issue. It is the need for a strict observance of the doctrine of the separation of powers, by both the executive and judiciary, which underlies the principle in both cases. For this reason, and most unusually for me, I prefer the recent analysis in this area offered by Laws LJ, and which appears to recognise that fundamental balance and distinction.

“ 38. Taking all these materials together, it seems to me, first, to be plain that the law of England will not contemplate what may be called a merits review of any honest decision of government upon matters of national defence policy. Without going into other cases which a full discussion might require, I consider that there is more than one reason for this. The first, and most obvious, is that the court is unequipped to judge such merits or demerits. The second touches more closely the relationship between the elected and unelected arms of government. The graver a matter of State and the more widespread its possible effects, the more respect will be given, within the framework of the constitution, to the democracy to decide its outcome. The defence of the realm, which is the Crown’s first duty, is the paradigm of so grave a matter. Potentially such a thing touches the security of everyone; and everyone will look to the government they have elected for wise and effective decisions. Of course they may or may not be satisfied, and their satisfaction or otherwise will sound in the ballot-box. There is not, and cannot be, any expectation that the unelected judiciary play any role in such questions, remotely comparable to that of government. ...

40. Secondly, however, this primacy which the common law accords to elected government in matters of defence is by no means the whole story. Democracy itself requires that all public power be lawfully conferred and exercised, and of this the courts are the surety. No matter how grave the policy issues involved, the courts will be alert to see that no use of power exceeds its proper constitutional bounds. There is no conflict between this and the fact that upon questions of national defence, the courts will recognise that they are in no position to set limits upon the lawful exercise of discretionary power in the name of reasonableness. Judicial review remains available to cure the theoretical possibility of actual bad faith on the part of ministers making decisions of high policy. In the British State I assume that is overwhelmingly unlikely in practice. “

R. (Marchiori) v. The Environment Agency [2002] EWCA Civ 03 paras. 38-40 per Laws LJ.

173 Also and perhaps a little more succinctly Laws LJ exampled his own views in the even more recent matter of ex parte Roth, as follows :

“ Para 85. The third principle is that greater deference will be due to the democratic powers where the subject-matter in hand is peculiarly within their constitutional responsibility, and less when it lies more particularly within the constitutional responsibility of the courts. The first duty of government is the defence of the realm. It is well settled that executive decisions dealing directly with matters of defence, while not immune from judicial review (that would be repugnant to the rule of law), cannot sensibly be scrutinised by the courts on grounds relating to their factual merits: see Chandler v DPP [1964] AC 763 at 790 per Lord Reid and 798 per Lord Radcliffe, and the recent case of Marchiori [2002] EWCA Civ 03 at paragraphs 33 - 38 of the judgment given by myself. The first duty of the courts is the maintenance of the rule of law. That is exemplified in many ways, not least by the extremely restrictive construction always placed on no-certiorari clauses. “
Regina v. Secretary of State for the Home Department ex p. International Transport Roth (GmbH)

[2002] EWCA Civ. 158 @ Para 85 per Laws LJ

174 In the final analysis, what is called for here, as with so much else in life and law, is the drawing of a balance, all be it not, as I see it, that it needs to be an especially ‘fine’ one. On the one hand, and pursuant to a strict adherence to the doctrine of the separation of powers, ensuring that the Courts, as the judicial branch of government, at no time and in no manner become a forum for debate or determination regarding the ‘merits’ of the policies, decisions and actions of the duly and lawfully appointed executive. Whilst, on the other hand, always upholding the ‘rule of law’ as the ultimate arbiter of the acceptable exercise of sovereign power in the land, where a so-called parliamentary democracy exists only due to observance of that law, and thus never permitting claims to ‘political imperative’ or ‘executive necessity’ to amount to a justification or excuse for unlawful conduct by the executive.

For a fuller examination of the law on this topic, including quotes from Chandler v DPP (1964) as above, see now the further exposition in Background Document RLM 009.

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