Today the Lords has given judgment bringing to an end the challenge by Corner House and the Campaign Against the Arms Trade to the SFO Director’s decision in December 2006 to discontinue the investigation into alleged corruption by BAe Systems in relation to the Al Yamamah defence contract with Saudi Arabia. I’ve written about this case a number of times before.
The Lords have unanimously reversed the judgment in the Administrative Court (this was a leap-frog appeal straight to the Lords, by-passing the Court of Appeal) and have vindicated the SFO completely. The decision of the SFO Director at the time, Robert Wardle, was lawful; he was entitled to come to the conclusion that the public interest in avoiding danger to the public outweighed the public interest in continuing the investigation.
Lord Bingham’s speech is the main one. He rightly puts the case in the context of the public interest test prosecutors are bound to take into account before prosecuting, and remind us that the article 2 Convention right to life is also a relevant part of the background here: the SFO cannot simply ignore real dangers to the lives of citizens on the street. Lord Bingham says that the principle adopted by the Administrative Court, which had held it was unlawful for a decision-maker to submit to threats from a foreign state unless there is no alternative, was not supported by authority; the cases the Administrative Court had relied on were not on all fours with this situation as they did not involve cases where one public interest consideration (here, public safety and national security) was in competition with another (here, the rule of law and need to combat corruption). The court had therefore applied the wrong test. The question was not what else the SFO could or should have done, but whether the Director was entitled to weigh the public interest considerations in the way he did. On this, Lord Bingham has no doubt. Applying normal principles, the result is straightforward:
In the opinion of the House 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. ―§42
I think it’s fair to say that this comes very near to endorsing the SFO decision, not merely ruling that it was lawful. Even Lady Hale, who as so often wears her liberal heart on her sleeve, concurring in the judgment reluctantly, agreed with Lord Bingham that the Director’s decision was a courageous one:
A lesser person might have taken the easy way out and agreed with the Attorney General that it would be difficult on the evidence to prove every element of the offence. But he did not.―§55
So the Lords had little difficulty with the key issue in the case: Robert Wardle must feel entirely vindicated; Lord Goldsmith too must be pleased with the outcome.
The other interesting sub-issue in the case was the justiciability and interpretation of the OECD Anti-bribery Convention. Does it preclude states from taking into account national security? And could the SFO Decision be ruled unlawful on that basis? Lord Bingham addresses this, but Lord Brown’s speech is I think the best place to look for the Lords’ reasoning as to why it thought it should neither interpret the Convention nor review the SFO Decision on the basis of the Convention. The Convention is not justiciable, at least not in the way the claimants contended for, under the Launder and Kebilene line of authority: those cases are distinguished because they involved no dispute about the meaning of a Convention which does provide for judicial rulings and on which there is substantial case law. The OECD Convention on the other hand does not provide for judicial rulings and the Lords’ unilateral decision to do so would limit the UK government’s ability to participate in the OECD working group that is charged under the Convention with attempting to reach a common interpretation. In any event, at least where the Director’s view that his decision was compatible with the Convention was tenable, Launder and Kebilene do not entitle the court to review his decision on the basis of its own interpretation where only the Director’s expression of that view brings the Convention within the court’s jurisdiction at all.
The issues in this case have shifted quite a bit since I pooh-poohed the challenge early on, but still, I feel a bit vindicated in my pooh-pooh; and in my qualms about the Administrative Court decision.
Clause 12 of the recently published Constitutional Renewal Bill will enable the Attorney-General to issue a direction to stop investigations such as that which was being undertaken by the SFO. If the Attorney issues such a direction then a report will have to be made to Parliament (Clause 14). By Clause 14 these reports may be delayed on grounds of “national security” and the contents of reports may avoid inclusion of information where there would be prejudice to national security or serious prejudice to international relations. This seems likely to impede any true parliamentary scrutiny of such reports.
One suspects that the Admin Court’s decision was too idealistic for the realpolitik world we all live in. Every government, irrespective of political persuasion, will wish to have the power to stop “inconvenient” investigations.
Having won the HoL decision, I wonder whether the government will now wish to keep Clause 12 etc in the Constitutional Renewal Bill?
“… the SFO cannot simply ignore real dangers to the lives of citizens on the street.“
Not disagreeing with your legal analysis and also would like to thank you for such. The problem is one of evidence. Is it true that there were (are) “…real dangers to the lives of citizens on the street.“
This simply doesn’t wash.
An American puppet state who are stupid enough (frightened enough) to participate in the petrodollar economy cannot sensibly pretend to threaten anyone in the absence of collusion from spooks and similar.
The absence of this type of analysis (obviously not overt) renders the reasoning, albeit legally correct, staid. Fit for academic discussion within the vacuum which academic discussion lies, rather than reality.
Very disappointing. Oh and by the way, it’s not six but five angels that can dance on the head of a pin.
[…] 60; [2009] 1 AC 756, and in particular the first 22 paragraphs. (The case was also the subject of a helpful explanation by Carl Gardner on his Head of Legal blog at the […]