Social:Shawcross principle
The Shawcross principle is an idea in the United Kingdom's Westminster system of government, whereby the Attorney-General is to be left to his or her own devices and judgments regarding whether or not to establish criminal proceedings. It relates to political pressure and cabinet government.[1][2]
History
What we know as the Shawcross principle was the subject of debate in the UK Parliament on 29 January 1951.[3] In a lengthy defence of his conduct regarding an illegal strike, Attorney-General Shawcross cited hundreds of years of precedent as to the firm foundation of his actions.
The principle (or doctrine) states:
- that the Attorney General[4][5][6] must take into account matters of public interest,
- that assistance from cabinet colleagues must be limited to advice,
- that responsibility for the decision is that of the Attorney General alone, and
- that the government is not to put pressure on him or her.
The 1964 Rivard affair in Canada caused the sitting Attorney-General, Guy Favreau, to resign because of his non-prosecution of senior officials in the Pearson government over their attempted bribery of American officials in Rivard's case.[7]
The Shawcross principle was cited by Australian Attorney-General Bob Ellicott who cited attempts by his boss, Malcolm Fraser, to control his discretion.[7]
In 2004 in the context of the Tony Blair's invasion of Iraq, a whistleblower by the name of Katharine Gun risked prosecution under the Official Secrets Act. Lawyers for Gun, who was formerly a GCHQ translator, asked for disclosure of advice on the legality of the Iraq war given by Attorney-General Lord Goldsmith in his role as the government's legal adviser. Goldsmith said that he had conducted what is known as a "Shawcross exercise". Goldsmith sent a "Shawcross letter" to the foreign secretary, Jack Straw, who was responsible for GCHQ, advising him that HMG should decline to pursue Gun.[8]
The Shawcross Principle was the judicial doctrine that the ethics commissioner Mario Dion said Canadian Prime Minister Justin Trudeau breached in the Jody Wilson-Raybould - SNC Lavalin bribery and fraud prosecution case.[9]
See also
- Prosecutorial discretion—A similar concept applying broadly at common law
Commentary
- Keyzer, Patrick (2016). Public Sentinels: A Comparative Study of Australian Solicitors-General. Routledge. p. 312. ISBN 9781317073321. https://books.google.com/books?id=IiMHDAAAQBAJ&pg=PT201.
- King, L. J. (November 1999). The Attorney-General, Politics and the Judiciary. Fourth Annual Colloquium of the Judicial Conference of Australia. https://jca.asn.au/wp-content/uploads/2013/11/THE-ATTORNEY-GENERAL-POLITICS-AND-THE-JUDICIARY.pdf.
- McCarthy, Alana (December 2004). "The Evolution of the Role of the Attorney-General". Murdoch University Electronic Journal of Law (23rd Annual Australia and New Zealand Law and History Society Conference) 11 (4): 30. http://classic.austlii.edu.au/au/journals/MurUEJL/2004/30.html.
- Rosenberg, Marc (2009). "The Attorney General and the Prosecution Function on the Twenty-First Century". Queen's Law Journal (Kingston, Ontario: Queen's University) 43 (2): 813–862. https://www.ontariocourts.ca/coa/en/ps/publications/attorney_general_prosecution_function.htm.
- Stenning, Phillip C. (2009). "Prosecutions, Politics and the Public Interest: Some Recent Developments in the United Kingdom, Canada and Elsewhere". Crim. L.Q. 55: 449. https://heinonline.org/HOL/LandingPage?handle=hein.journals/clwqrty55&div=27&id=&page=.
- "The Decision to Prosecute". Attorney-General for Newfoundland and Labrador. 1 October 2007. https://www.gov.nl.ca/jps/files/prosect-guidebook-005.pdf.
- Prosecutorial Independence – Continuity and Development. November 2008. https://www.doj.gov.hk/eng/public/basiclaw/basic11_2.pdf.
- Wong Yan Lung, The Secretary for Justice as the Protector of the Public Interest – Continuity and Development (2007) 37 HKLJ 319
References
- ↑ Shawcross, Hartley (29 January 1951). "Prosecutions (Attorney-General's Responsibility)". Hansard House of Commons Debates (c681). https://www.theyworkforyou.com/debates/?id=1951-01-29a.679.0.
- ↑ Heintzman, Ralph (16 May 2020). "The real meaning of the SNC-Lavalin affair". The Globe and Mail Inc. https://www.theglobeandmail.com/opinion/article-the-real-meaning-of-the-snc-lavalin-affair/.
- ↑ Dube, Jacob (14 August 2019). "What is the Shawcross Principle, the judicial doctrine that the ethics commissioner said Trudeau breached?". SaltWire Network, Postmedia. The PEI Guardian. https://www.theguardian.pe.ca/news/canada/what-is-the-shawcross-principle-the-judicial-doctrine-that-the-ethics-commissioner-said-trudeau-breached-341312/.
- ↑ Rosenberg, The Honourable Marc (2009). "The Attorney General and the Prosecution Function on the Twenty-First Century". Queen's Law Journal 43 (2). http://www.ontariocourts.ca/coa/en/ps/publications/attorney_general_prosecution_function.htm. Retrieved 12 September 2019.
- ↑ Spratt, Michael (25 February 2019). Opinion: The real scandal in the SNC-Lavalin affair. https://www.canadianlawyermag.com/author/michael-spratt/the-real-scandal-in-the-snc-lavalin-affair-16895/. Retrieved 12 September 2019.
- ↑ Forcese, Craig (9 February 2019). "L'Affaire SNC-Lavalin: The Public Law Principles". http://craigforcese.squarespace.com/public_law_blog/2019/2/9/laffaire-snc-lavalin-the-public-law-principles.html.
- ↑ 7.0 7.1 Colvin, Victoria (19 February 2019). "The SNC-Lavalin affair and the politics of prosecution". The Conversation Trust (UK) Limited. https://theconversation.com/the-snc-lavalin-affair-and-the-politics-of-prosecution-111778.
- ↑ Dyer, Clare (27 February 2004). "The importance of the Shawcross principle". Guardian News & Media Limited. https://www.theguardian.com/uk/2004/feb/27/freedomofinformation.iraq.
- ↑ Dubé, Jacob (14 August 2019). "What is the Shawcross Principle, the judicial doctrine that the ethics commissioner said Trudeau breached?". National Post. https://nationalpost.com/news/canada/what-is-the-shawcross-principle-the-judicial-doctrine-that-the-ethics-commissioner-said-trudeau-breached.
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