Andrew Blick and Stuart Weir (London & Cambridge, Democratic Audit): Two important conclusions can be drawn from Thursday's High Court judgement, which ruled the dropping of the Serious Fraud Office (SFO) probe into the 'Al-Yammamah' BAe/Saudi arms deal to be unlawful. One is that the judiciary, for all its faults, can be relied upon to defend the rule of the law, the legal process and its independence from executive interference. The second is that the executive and in particular ministers cannot.
The uncompromising clarity of the judgement throws into sharp relief the government's fudged response to the evasions and perceived partiality of the Goldsmith regime on this issue and the illegal war against Iraq. Last July the Prime Minister said that he wanted to restore confidence in the office of the Attorney General, but he has resiled from that position very quickly, apparentlly under pressure from Baroness Scotland, yet another appointed minister. How can it be right that the Attorney General, a party politician appointed by the Prime Minister, should retain the ability to force the halting of such investigations?
The court's open contempt for the failure of the government to uphold the principles of the rule of law and to withstand the Saudi threats - as expressed in the words of Lord Justice Moses and Justice Sullivan - certainly "invites at least dismay, if not outrage." But we can expect more abuses in the future if the government does not changes its plans for the office of Attorney General. The Constitutional Renewal white paper proposes that the AG should still be able to halt prosecutions and SFO investigations on 'national security' grounds, and even to make the latter power legally explicit where it was not before. This is a flagrant political proposal to impose on the rule of law that 'overweening power' that the court insists must be resisted. It was right to do so even if, as John Jackson and Anthony Barnett have both suggested on this site, the mechanism by which this resistance was achieved remains questionable.
Quite properly, there are already moves from the Liberal Democrats and within Labour to press for the investigation to be renewed. But all parties need also to quash the government's attempt to preserve and extend the power of the Attorney General to interfere in the legal process. Gordon Brown would do well to re-open the investigation; to establish in law the independence of the Director of Public Prosecutions and the Director of the SFO; and to show he is genuinely serious about basic constitutional principles by defining the 'rule of law' in statute as well.
