20 2GM Monday August 3 2020 | the times
News
Judges fear that ministers are increas-
ingly misleading the courts, a former
Conservative attorney-general has
warned in a row over claims that the
SAS murdered Afghan civilians.
Dominic Grieve, QC, who was the
government’s senior law officer for four
years in David Cameron’s administra-
tion, said that a “serious problem” was
emerging between the judiciary and
the government.
Mr Grieve was reacting to a report
yesterday that a High Court judge has
ordered Ben Wallace, the defence sec-
retary, to explain why evidence that an
Grieve warns government over SAS killings row
allegedly rogue SAS team went on a
murder spree in 2011 was suppressed.
According to The Sunday Times, cru-
cial emails were withheld from legal
proceedings brought by London law-
yers acting for an Afghan man. New
information emerged after it was re-
vealed that the government had misled
the High Court, the newspaper said.
The Government Legal Department
had argued that there had been no
complaints about the killings at the
time but the documents that the
Ministry of Defence was later forced to
disclose contradicted that claim.
“It is impossible to tell from the re-
port at what level a problem with dis-closure by government lawyers would
have arisen,” Mr Grieve told The Times.
“However, there is a potentially serious
problem more broadly.
“The government is supposed to
litigate with clean hands. But there is
increasing disquiet among the judiciary
that is damaging that trust.”
Lord Falconer of Thoroton, QC, the
shadow attorney-general and Tony
Blair’s former justice secretary, said
that the government’s relationship with
the judiciary “very much does concern
me”. He said that it was “extremely
unlikely” that the Government Legal
Department had intentionally misled
the court over the emails, and moreprobable that it had not been properly
informed by officials from the MoD.
“It is very worrying if government
officials are not briefing their lawyers
accurately and are not complying with
embargoes,” Lord Falconer said.
Lord Dannatt, who was chief of the
general staff from 2006 to 2009, said
that “if the government wants to be
seen to be standing by the rule of law, it
needs to apply that principle even when
the special forces are concerned.
Otherwise, their credibility is gone.”
The crossbench peer added that the
government should allow an investi-
gation when reasonable grounds for
doing so existed.A spokesman for the MoD said that
the evidence unearthed by The Sunday
Times was “not new”. He added: “This
historical case has already been inde-
pendently investigated by the Royal
Military Police... it has also been
subject to four reviews conducted by an
independent review team.
“These documents were considered
as part of the independent investiga-
tions, which concluded there was insuf-
ficient evidence to refer the case for
prosecution. The service police and
prosecuting authority of course remain
open to considering allegations should
new evidence, intelligence or informa-
tion come to light.”Jonathan Ames Legal Editor
A former Conservative minister will
take charge of a controversial investi-
gation into whether judges should con-
tinue to rule on the legality of some
government decisions.
Lord Faulks, QC, who spent two
years in the Ministry of Justice in David
Cameron’s government, has been
appointed to head a panel that will
assess judicial review.
The assessment, announced by
Robert Buckland, the justice secretary,
is seen by some as a reaction to frustra-
tion in Downing Street over increasing
judicial muscle-flexing. The opposition
expressed immediate concern.
David Lammy, the shadow lord chan-
cellor, questioned the independence of
Lord Faulks, 69, and accused him of
having already decided that parliament
should rein in the powers of judges.
Judicial reviews temporarily stalled
the UK’s departure from the EU after
the Brexit referendum and found that
Boris Johnson’s attempt to prorogue
parliament last year was unlawful.
Lord Faulks will be joined by two
other lawyers on a six-strong panel that
will “consider whether the right bal-
ance is being struck between the rightsEx-justice minister will
review power of judges
of citizens to challenge executive deci-
sions and the need for effective and effi-
cient government”. Mr Buckland said
that the review “will ensure this
precious check on government power is
maintained, while making sure the pro-
cess is not abused or used to conduct
politics by another means”.
Critics, however, pointed to
comments Lord Faulks made in a paper
last year for the think tank Policy
Exchange. Responding to the proroga-
tion case in the Supreme Court, he said:
“Parliament might want to legislate to
protect other, related prerogative pow-
ers. Legislation of this kind may be the
only way to limit the courts’ incursion
into political territory.”
Mr Lammy said: “Appointing some-
one who wrote that parliament should
legislate to limit judicial review after
the prorogation case to chair the panel
examining it raises serious questions
over its independence. This is a blatant
attempt to disempower the public.”
A justice ministry source defended
the choice of Lord Faulks, pointing out
that he had resigned from his minister-
ial post over the appointment of Liz
Truss as justice secretary. At the time he
told The Times that he feared she would
not have the “clout” to stand up to the
prime minister on behalf of judges.
.Jonathan Ames Legal Editor
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