Politics Cannot Play at an Altitude Higher Than the Law
| Author | Gary Slapper |
| Published date | 01 June 2009 |
| Date | 01 June 2009 |
| DOI | http://doi.org/10.1350/jcla.2009.73.3.563 |
| Subject Matter | Opinion |
OPINION
Politics Cannot Play at an Altitude Higher
than the Law
Gary Slapper*
Professor of Law, and Director of the Centre for Law at the Open University
English law applies the principle nemo judex in causa sua—nobody should
be a judge in his own cause. That principle, a canon of natural justice,
does not seem to have been honoured recently by the Lord Chancellor
and Secretary of State for Justice, Jack Straw.
On 25 February 2009, Mr Straw announced that he was using a
ministerial veto for the first time since the Freedom of Information Act
was introduced in January 2005 to prevent publication of minutes from
two cabinet meetings in March 2003.
In ruling against the release of the cabinet minutes (which relate to
the UK government decision to go to war in Iraq), and overruling a
decision of the Information Tribunal, Jack Straw made a quasi-judicial
decision from which, potentially, he stands personally to gain in a
political setting.
The fact is that during the material time, in 2003, Mr Straw was
Foreign Secretary and there is some evidence that the war was unlawful.
Certainly, much senior legal opinion has regarded the war as something
launched and prosecuted in violation of international law.
Addressing the British Institute of International and Comparative
Law on 17 November 2008, Lord Bingham of Cornhill, the former
senior Law Lord, said:
It was not plain that Iraq had failed to comply [with United Nations
resolutions] in a manner justifying resort to force and there were no strong
factual grounds or hard evidence to show that it had.
Supporting the body of international legal opinion that disfavoured
invasion, Lord Bingham said that to argue, as the British government
had done, that Britain and the United States could unilaterally decide
that Iraq had broken UN resolutions ‘passes belief’.
He stated (The Times (19November 2008)):
If I am right that the invasion of Iraq by the US, the UK, and some other
states was unauthorised by the Security Council there was, of course, a
serious violation of international law and the rule of law.
The British public have a legitimate interest in knowing how their
government came to have entered that war, a fortiori if the decision to
proceed was in fact, per Lord Bingham, a ‘serious violation of inter-
national law’. At the key time, Jack Straw was Foreign Secretary. If there
* The views expressed in this article are those of the author and do not necessarily
reflect the views of The Open University or The Journal of Criminal Law.
185The Journal of Criminal Law (2009) 73 JCL 185–187
doi:1350/jcla.2009.73.3.563
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