Lady Scotland opens a can of worms

There is no denying the fact that high-ranking Israeli officials are at risk of being arrested for war crimes if they travel to the UK.

It’s difficult to convey how high passions about this state of affairs run on both sides of the debate, but one thing is clear. The question of whether things should change has not so far been a question of law. The argument has been ignited and fuelled entirely by questions of politics.

The political factors are well rehearsed. Foreign Office officials describe the effect of Tzipi Livni’s possible arrest for example, as highly damaging for diplomatic relations with Israel and the UK’s ability to play a useful role in peace negotiations. There is undeniable embarrassment for our ministers if they are forced to look on, helpless, as their friends and colleagues from Israel languish in police custody because of a warrant which, it’s true to say, would not necessarily even lead to charges being brought.

This is where the legal factors come in. That helplessness arises not from a problem with the law, but the fact that it works. The UK’s independent judiciary have, on occasions at least, been applying the law irrespective of its potential for political inconvenience. Israel – whose supreme court has become a world leader in human rights jurisprudence, often to the great inconvenience of its own government – is perfectly familiar with this process. There is nothing for politicians to apologise for because, as everyone understands, the courts are a separate branch of state and not in any way under the executive’s control.

So when a district judge at Westminster magistrates’ court issues an arrest warrant, he or she is doing what judges do in any other case – forming a view on the evidence against the person in question, and applying the law that has been enacted by parliament.

The law in this case creates “universal jurisdiction”, which enables a person to be arrested in this country for an alleged offence committed abroad. It’s unfortunate that the only high-profile cases of attempted arrests for war crimes have been of Israeli officials, because the purpose of the law is to provide a means of enforcing penalties for the most serious international crimes – war crimes, torture, genocide – committed anywhere. Weakening the ability of our courts to do so would protect not only Israelis but leaders across the world, in countries whom our government is less fond of diplomatically, who have been accused of violating rights on a massive scale.

Yesterday the attorney general gave her clearest indication yet that weakening the ability of the UK’s courts to enforce universal jurisdiction is exactly what the government is planning to do.

“The government is looking urgently at ways in which the UK system might be changed to avoid this situation arising again,” she said, speaking at the Hebrew University of Jerusalem yesterday and referring obviously to the recent attempts to obtain a warrant for Livni and Ehud Barak. “[The government] is determined that Israel’s leaders should always be able to travel freely to the UK,” she added.

This announcement was unambiguously a political one – the attorney general did not in any way address the legal or constitutional implications of her assurance. But these implications are profound. What the government is suggesting is not so much changing the law, as interfering with the procedure. Instead of allowing a judge to use their discretion by deciding whether the evidence is sufficient to issue a warrant – the fundamental “safeguard” which has already prevented warrants being issued in the past, the attorney general would have to agree.

In case there is any doubt who the attorney general is, it’s worth remembering that she is a cabinet member in all but name, and the government’s chief legal adviser. To have such a senior member of the executive involved in the nascent stages of cases is nothing short of interference with the judicial process.

Such interference would be serious regardless of the circumstances. But the fact is, this comes at a time when there is near consensus that the direct interference of the executive in individual cases is an anathema to the rule of law. This was the verdict of the high court in the BAE case – where the attorney general’s interference in a Serious Fraud Office prosecution to avoid damaging relations with Saudi Arabia was described as painting “so bleak a picture of the impotence of the law” that it “invites at least dismay, if not outrage”.

Even the government acknowledges that it is not constitutionally sustainable for the attorney general to have a role in individual cases, announcing last year that the holder of the post would no longer have a direct role in all but the most sensitive for national security.

Yet here we have an attempt to give the attorney general not only increased powers to interfere in individual cases, but at an unprecedented stage of proceedings. Because when it comes to the decision as to whether charges should be brought – which is a distinct and subsequent stage to a warrant being issued – the attorney general is already required to consent.

If the government seriously wishes to advance this kind of role for the attorney general in war crimes cases, and consider the range of legal and constitutional issues this involves, then bring it on.

But for the attorney general to make off-the-cuff announcements in Israel of a purely political nature about what is in reality a serious question of domestic law, without any wider consultation in the UK … well it’s where another of the attorney’s job descriptions springs to mind: “guardian of the rule of law”. Maybe that’s the one she should focus on in future.