Judges ‘not always best placed’ to decide public interest

Topics: Courts business,Government & politics

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  • Jeremy Wright QC MP

Politicians are sometimes better placed than judges to decide what is in the public interest in disputes over freedom of information, the government’s most senior lawyer has said.

Attorney general Jeremy Wright QC MP (pictured) said there were ‘constitutional’ and ‘practical’ reasons why courts were not necessarily best placed to take decisions involving matters of public interest.

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Rather, the attorney general ‘is better placed than the courts, or indeed other ministers, to decide what the public interest is’.

In a speech circulated by the government today, Wright told University College London’s law faculty yesterday that when it came to matters of public interest, ‘there is a tone to the debate sometimes that government is partisan, making decisions for its own benefit. It is sometimes said that only judges are sufficiently detached to be able to take decisions which truly balance competing interests.

‘In my view there are circumstances where it is clearly right that decisions on matters of public interest should be taken by an elected, accountable politician, rather than by a court.’

Such circumstances currently include those relating to conducting foreign relations and national security strategy, Wright said. He suggested these circumstances could be extended to include decisions in relation to requests made under the Freedom of Information Act 2000.

In 2015, the Supreme Court dismissed an appeal by the attorney general in relation to the disclosure of letters between government departments and the Prince of Wales.

The attorney general had issued a certificate under section 53 of the Freedom of Information Act stating that he had, on ‘reasonable grounds’, formed the opinion that the departments had been entitled to refuse disclosure of the letters.

Wright said that parliament had intended that the exercise of the government veto ‘should be an executive function with democratic accountability for its use through parliament.

‘It constitutes a rare, but as I have set out far from unprecedented, recognition that the courts cannot constitutionally be the sole guardians of the public interest, and that there are more important exceptions to the principle that courts’ views are final.’

Wright said the veto would always be subject to the ‘checks and balances’ of judicial review, ‘but a proposition that complex balances of the public interest - which are after all the daily business of modern government - can only be done by courts is plainly wrong’.

A forthcoming bill to regulate interception of communications however, was a good example where ‘ministers and the court can have different but complementary roles’, he said.

The draft investigatory powers bill, published last year, includes an authorisation model requiring a judicial commissioner to approve a warrant authorised by a secretary of state, almost always in advance.

Readers' comments (41)

  • Wow. There we have it. The Executive think there are times when they are best placed to make judicial decisions and to decide what defines public interest.

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  • @Anonymous9 February 2016 02:20 pm:

    As there is no real Legal Profession anymore, and no way of charging for uncovering corruption (Central Funds having gone and Legal Aid), it was coming.

    In fact I am surprised this sort of statement has taken so long to come to the fore......

    I offer a very hackneyed, " Quis custodiet ipsos custodes? ".

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  • So that's it then.
    When does Mr Putin move into Number 10?

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  • "He would say that, wouldn't he?" to use the words of one who also served politicians so well.

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  • Not Mr Putin yet, I think.

    At least he hasn't tried to hit the Chief Justice as James I did Coke CJ for telling he ruled "under God and the common law". Or locked him in the Tower.

    Her Majesty's Judges will continue to do what Her Majesty's Judges have to do - to paraphrase Coke again. So long as we accept that they do their best, are not corrupt, and are not always right.

    I hope that the senior judges won't take this lying down.

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  • I thought they were trying to control the judiciary by giving them budgetary responsibility and then controlling the purse strings?

    But I guess they have to keep other cards up their sleeves - just in case? Even though it is the minority who elect our ministers?!

    Troubling.

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  • Pipped me at the post there David - I was just about to use the very same quote!

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  • I would say that judges cannot be trusted to decide what is in the public interest. You only have to look at all of their ridiculous HRA rulings to see that they are out-of-touch with reality. They should defer to the MPs in Parliament, who can be changed every five years if enough people don't like what they have done.

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  • Regrettably there have been a couple of recent cases that do indeed raise the spectre that the judge or jury must have been nobbled, but even so the corruptibility of the judicial system is manifestly far less than the parliamentary and civil service system (particularly once Jack Straw finishes exempting the civil service from transparency).

    I must contradict anon of 04.44. The present government is doing its best financially to cripple the Labour party, is planning a huge gerrymander with constituency boundaries, and has already started filleting the voting rolls to remove the young and transient (who are far more likely to vote Labour). In the real world the change of getting rid of the con-servatives via the ballot box is slim and getting less, not for proper (policy related) political reasons but because of antidemocratic manoeuvring.

    One general has already hinted at a coup to remove a Labour government (if ever) led by Corbyn.

    The press and media, in the hands of a few very rich barons, provide a relentless bombardment of highly right-wing propaganda, and outright lies in government (Hammond, Hunt, to name but two) go unremedied.

    The progression is obvious. They came for the sick. They came for the poor. They came for the workers. They came for the foreigners. They came for the unions. They came for the lawyers. Now they are coming for the judges.

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  • Oh - and, incidentally, you know the long list of things said to have been provided in the name of human rights, starting with hard-core porn in prisons, proceeding the KFC on prison roofs, deportation blocked for a pet cat, etc - they are all lies. Look it up - as any competent lawyer ought to be able to do.

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