Shawcross principle

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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[edit]

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[edit]

Commentary[edit]

  • Keyzer, Patrick (2016). Public Sentinels: A Comparative Study of Australian Solicitors-General. Routledge. p. 312. ISBN 9781317073321.
  • King, L. J. (November 1999). The Attorney-General, Politics and the Judiciary (PDF). Fourth Annual Colloquium of the Judicial Conference of Australia.{{cite book}}: CS1 maint: location missing publisher (link)
  • McCarthy, Alana (December 2004). "The Evolution of the Role of the Attorney-General". Murdoch University Electronic Journal of Law. 11 (4). 23rd Annual Australia and New Zealand Law and History Society Conference: 30.{{cite journal}}: CS1 maint: location (link)
  • Rosenberg, Marc (2009). "The Attorney General and the Prosecution Function on the Twenty-First Century". Queen's Law Journal. 43 (2). Kingston, Ontario: Queen's University: 813–862.
  • 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.
  • "The Decision to Prosecute" (PDF). Attorney-General for Newfoundland and Labrador. 1 October 2007.
  • "Prosecutorial Independence – Continuity and Development" (PDF) (11). November 2008. {{cite journal}}: Cite journal requires |journal= (help)
  • Wong Yan Lung, The Secretary for Justice as the Protector of the Public Interest – Continuity and Development (2007) 37 HKLJ 319

References[edit]

  1. ^ Shawcross, Hartley (29 January 1951). "Prosecutions (Attorney-General's Responsibility)". Hansard. House of Commons Debates (c681).
  2. ^ Heintzman, Ralph (16 May 2020). "The real meaning of the SNC-Lavalin affair". The Globe and Mail Inc.
  3. ^ Dube, Jacob (14 August 2019). "What is the Shawcross Principle, the judicial doctrine that the ethics commissioner said Trudeau breached?". The PEI Guardian. SaltWire Network, Postmedia.
  4. ^ Rosenberg, The Honourable Marc (2009). "The Attorney General and the Prosecution Function on the Twenty-First Century". Queen's Law Journal. 43 (2). Retrieved 12 September 2019 – via www.ontariocourts.ca.
  5. ^ Spratt, Michael (25 February 2019). "Opinion: The real scandal in the SNC-Lavalin affair". CanadianLawyerMag.com. Retrieved 12 September 2019.
  6. ^ Forcese, Craig (9 February 2019). "L'Affaire SNC-Lavalin: The Public Law Principles". craigforcese.squarespace.com (Blog). Retrieved 12 September 2019.
  7. ^ a b Colvin, Victoria (19 February 2019). "The SNC-Lavalin affair and the politics of prosecution". The Conversation Trust (UK) Limited.
  8. ^ Dyer, Clare (27 February 2004). "The importance of the Shawcross principle". Guardian News & Media Limited.
  9. ^ Dubé, Jacob (14 August 2019). "What is the Shawcross Principle, the judicial doctrine that the ethics commissioner said Trudeau breached?". National Post.
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