John Jackson (London, Mishcon de Reya ): Doubtless some, perhaps many, will be disappointed by the unanimous decision of five law lords to overturn the judgement delivered, and probably crafted, by Lord Justice Moses in the Serious Fraud Office’s BAE case. And those disappointed will include some who have convinced themselves that the Blair government acted cravenly to protect the commercial interests of BAE - a large employer and taxpayer - or even that this all fitted in with a longer term plan by Blair himself to grease his passage, post-premiership, to a position from which he could enjoy the trappings of international office and advance the interests of his friends in the United States in the maintenance of oil supplies from the Middle East.
One of the very good things about their lordships’ judgement is that it pours a stream of cold and cleansing water over such fevered, spiteful and politically inspired imaginings. Even if there was corruption, even if this was demanded by the Saudis, and even if there was intimidation and collusion, the Law Lords have set out with great clarity the facts, as they - who are neither naïve nor gullible - see them, which underlay the reluctant decision of the Director of the SFO to stop the investigation into alleged bribery of “the Saudis”.
As Baroness Hale, who did not conceal her intense dislike of Saudi pressure, put it, “He only gave way when he was convinced that the threat of withdrawal of Saudi security co-operation was real and that the consequences would be an equally real risk to “British lives on British streets”.
The consequences were spelled out in the terms quoted by Lady Hale. Her source was not Downing Street, nor the Attorney General, but our Ambassador to Saudi Arabia, apparently on several separate occasions.
Perhaps the view of the Court is best summed up in the words of Lord Bingham, our Senior Law Lord, as a supplement to the finding that the Director’s decision was one he was lawfully entitled to make, “ It may indeed be doubted whether a responsible decision-maker could, on the facts before the Director, have decided otherwise.”
One especially good aspect of the judgement is that it deals shortly and firmly with Lord Justice Moses’ flights of judicial fancy. Possibly to assuage his moral outrage at what he saw as the rule of law in our country being threatened by the agents of a foreign power, Moses enthusiastically set about finding a judicial principle that would support the decision he was determined to make. For as he saw it, the rule of law itself need the special protection of our courts. His conclusion, Moses claimed, involved the creation of “no revolutionary principle”. Instead, he pulled out of his hat, or should we say his wig, something he claimed to have discovered. He describes his eureka moment thus: “The principle we have identified is that submission to a threat is lawful only when it is demonstrated to a court that there was no alternative course open to the decision maker”.
This breathtaking assertion, said to flow from the deployment of “well settled principles of public law”, was rejected with dry wit by Lord Bingham and his colleagues who concluded that the Administrative Court under Moses’ direction “did lay down a principle which, if not revolutionary, was novel and unsupported by authority.”
That was well done and well said. It is all too easy-and dangerous-for judges of the ilk of Moses to expand the envelope of judicial authority into the realms of politics and morality by the invention of judicial principles they have allegedly ‘discovered’. This is not good for the judges, nor any of us! It is certainly the case that we need a democratic and written constitution that recognises the role of judges in protecting fundamental principles from the reckless action of politicians. But a codified constitution will also serve us by limiting the role of judges and protecting the rights of the executive, the legislature and the people from a dictatorship of the judiciary. Lord Bingham seems to understand this very well. He is retiring soon and he will be missed.
PS: Incidentally, the Law Lords made clear that they did not admire the attempt of the Attorney General, Lord Goldsmith, to find an escape route by claiming that there was unlikely to be sufficient evidence to support a successful prosecution. And they congratulated the Director of the SFO for standing out against this.
