John Jackson (London, Mishcon de Reya & Unlock Democracy): The High Court judgement delivered today, that the Serious Fraud Office acted unlawfully in ceasing to investigate an allegation that BAE had resorted to bribery in obtaining Saudi arms contracts, repays careful reading which you can do here in full. It should not be welcomed with enthusiasm by democrats whatever the motives of the British government.
The case was brought by two organisations (Corner House and the Campaign Against Arms Trade) on six grounds. These included the claims that the submission by the SFO to a threat (by Saudi Arabia) was contrary to the constitutional principle of the rule of law and was also in breach of the OECD Anti-Bribery Convention, to which the UK is a signatory.
The written judgement delivered by Lord Justice Moses is laced with references to the rule of law and the roles of the courts and judges in defending it.
The court was "driven to the conclusion" that, in the circumstances, the submission to threat was unlawful because the SFO had failed to demonstrate to the Court that there was no alternative to submission open to it. However, having thereby concluded that, under conventional domestic law principles, the decision was unlawful, the Court decided it was not necessary to make a ruling on the OECD convention point.
This "cautious, perhaps pusillanimous approach" - the Court's own words - was justified on the grounds that not only was such a further decision unnecessary but questions of definition arose and the parties to the Convention had effectively agreed that matters of definition should be in the hands of the OECD Working Group on Bribery.
It is interesting to see this "neat" avoidance of a tricky question in the context of remarks made by the Senior Law Lord - Lord Bingham - in a speech delivered in 2006.
In his view, the statement by Parliament in the Constitutional Reform Act 2005 that the rule of law is an existing constitutional principle (a phrase repeated in today's judgement) would oblige the judges to interpret legislation in a way consistent with the rule of law, if it was reasonably possible to do so. He did not attempt a definition of the term "the rule of law" (undefined in the 2005 Act also) but postulated eight sub-principles as essential components. One of these was that nations comply with their international treaty obligations. As today's decision illustrates, this is not easy if our courts are uncomfortable with defining what those obligations are.
Leaving that on one side, we now have a situation in which government action "justified" on national interest grounds but challenged by private citizens, is ruled on by judges. They examined the facts made available to them and ruled the government action as unlawful because of non-compliance with the rule of law. This puts the judiciary on a collision course with Government and, potentially, with Parliament to which the Attorney General had reported and explained the decision of the SFO.
Such a collision has been looming for some time. It is highly undesirable and will add to the confusion about our constitutional arrangements.
Of course there is a danger of government justifying improper actions on "national interest" grounds and of course compliance with treaty obligations is essential if we are to avoid an international Deadwood Gulch. But any policing of these obligations by our judges should follow from their duty to uphold the explicit contents of a constitution settled and adopted by "we the (sovereign) people". It should not be a consequence, however well intended, of judicial definition, even extension, of fluid and imprecise concepts.
And it is in such a written constitution that we should find the limits of government and parliamentary power and duty in determining the national interest - and all of Lord Bingham's eight sub-principles.
This case is a "wakeup" call.
