A blackmailers' charter
The senior judiciary has made it crystal clear – in rulings such as the seminal Belmarsh judgment, for example, which laid down that foreign terror suspects could not be locked up without trial – that the driving consideration in formulating anti-terror legislation must be to do nothing that jeopardises the ancient rights and liberties of Britain. This is a refrain one hears hammered home time and again by the law officers, parliamentarians and other establishment types. Nothing, they intone, is more important than to uphold Britain’s fundamental values. To do anything else, they sternly warn, is to hand victory to those who want to destroy our way of life.
Yet the Law Lords have now ruled that the former Director of the Serious Fraud Office, Robert Wardle, was correct to ditch the bribery investigation into the al Yamamah arms deal between Saudi Arabia and BAE systems in response to an explicit threat made by the Saudi authorities that, if the investigation continued, Saudi would no-longer co-operate with the UK over counter-terrorism, withdraw co-operation from the UK in relation to its strategic objectives in the Middle East, and end the negotiations then in train for the procurement of Typhoon aircraft. Wardle aborted his investigation after Sir Sherard Cowper-Cowles, the ambassador to Riyadh, had repeatedly claimed to him that ‘British lives on British streets’ were at risk, and that the Saudis were, in effect, willing to see UK citizens murdered by terrorists if they did not get their way. He made this decision even though, as the Law Lords say:
had the threat been made by a person subject to English criminal law he would risk being charged with an attempt to pervert the course of justice ...
Precisely. That’s why in the earlier Divisional Court ruling Lord Justice Moses and Lord Justice Sullivan had rightly condemned the halting of the SFO’s investigation as a betrayal of the rule of law. The Law Lords reminded us that they had observed:
...in halting the investigation he [Wardle] surrendered to a threat made with the specific intention of achieving surrender. The court could identify no integrity in the role of the courts to uphold the rule of law if they (the courts) were to abdicate in response to a threat from a foreign power... No one had suggested to the Saudis that threats were futile since Britain’s democracy forbade the exertion of pressure on an independent prosecutor.
Now the five Law Lords led by Lord Bingham have overturned that ruling. One of the five, Lady Hale, lamented:
I confess I would have liked to be able to uphold the decision ... of the divisional court. It is extremely distasteful that an independent public official should feel himself obliged to give way to threats of any sort. The director clearly felt the same for he resisted the extreme pressure ... for as long as he could. He had to weigh the seriousness of the risk against the other public interest considerations. These include the importance of upholding the rule of law and the principle that no one, including powerful British companies who do business for powerful foreign countries, is above the law ... I would wish that the world were a better place where honest and conscientious public servants were not put in impossible situations such as this.
One might well sympathise with the Director’s impossible position. But the correct course of action when faced with an attempt to pervert the course of justice by threatening the lives of the public is surely to take condign action against the people making that threat. When Saudi Arabia threatened to retaliate by placing British lives at risk, Britain should have taken strong diplomatic action against Saudi Arabia. It should have told Saudi, as the Divisional Court suggested, that
threats were futile since Britain’s democracy forbade the exertion of pressure on an independent prosecutor.
Instead, it has now shown Saudi -- and the rest of the world --. that in Britain threats are not futile at all but are on the contrary extremely effective; and that far from forbidding pressure on an independent prosecutor, Britain now says such a prosecutor is correct to give in to it. So much for the spine of England’s most senior judiciary. As the LibDem leader Nick Clegg has said, the Law Lords’ ruling is a blackmailers’ charter.
What price now Britain’s ancient rights and liberties?