Shawcross principle

The Shawcross principle is an idea in the Westminster system of government whereby the Attorney-General is to be left to his or her own devices and judgments in regards of 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 parliamentary debate on 29 January 1951.[3] In a lengthy defense 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]

Commentary
  • 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.
  • 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.CS1 maint: location (link)
  • 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.
  • 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 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
  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. 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.
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