Legal Opinion
on the 'constitutionality' of draft Constitutional Renewal Bill

This 'legal opinion' from a top UK constitutional lawyer concludes that a clause in the draft Constitutional Renewal Bill (published 25 March 2008) effectively preventing judicial review of a decision to halt a prosecution or fraud investigation on the grounds of national security violates a fundamental UK constitutional principle of the rule of law, and could be challenged under the Human Rights Act.

The UK Government published its draft Constitutional Renewal Bill on 25 March 2008. It establishes 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.

This 'legal opinion' from top UK constitutional lawyer Professor Jeffrey Jowell QC (Queen's Counsel) assesses whether enabling the Attorney General to halt a prosecution or fraud investigation on grounds of national security without judicial scrutiny or parliamentary accountability is constitutional, including being compatible with the Human Rights Act 1998 and with standards of international law.

The opinion outlines what is meant by 'unconstitutional', given that the UK does not have a written constitution; considers the constitutional principles of 'separation of powers' and 'rule of law'; and explores whether decisions on national security can justifiably be exempt from these principles.

He concludes that the Bill's effective prevention of judicial review of a decision invoking national security violates the fundamental constitutional principle of the rule of law, and could be challenged under the Human Rights Act.

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