Arms and the men

On October 14, 2005, the SFO issued a statutory notice to BAE requiring it to disclose details of payments to agents and consultants in respect of the Al-Yamamah contracts. On November 7, 2005, in response to that notice, BAE’s solicitors, in a memorandum described as “strictly private and confidential” addressed to the attorney general, urged that the investigations be halted because that would seriously affect relations between the UK and Saudi Arabian governments. Investigations however continued.

In July 2006, the SFO was about to obtain access to Swiss bank accounts. There was panic reaction. Prince Bandar conveyed to the then prime minister, Tony Blair’s chief of staff that if the SFO’s looking at the Swiss accounts didn’t stop there would be no contract for the export of Typhoon aircrafts and, moreover, intelligence and diplomatic relations between the two countries would cease. Blair and other ministers in their statements were emphatic that continuance of the investigations was likely to have serious negative consequences for the UK in terms of both national security and “our highest priority foreign policy objectives in the Middle East.” In these circumstances, the director of the SFO concluded that continuance of the investigations meant real and imminent damage to the UK’s national and international security and would endanger the lives of UK citizens and service personnel and therefore terminated the investigations.

Corner House Research (Corner House), a recognised NGO, applied for judicial review of the government’s decision to end the investigations. The main ground was that it was unlawful for the director of the SFO, a statutory authority, to yield to the threat made by Prince Bandar or his agents and such conduct was contrary to the constitutional principle of the rule of law. The factual basis that a threat was issued by Prince Bandar or his agent was not disputed. The government invoked the principle of separation of powers and the counsel for government vehemently argued that judicial intervention was unwarranted in the present case.

The court recognised that the doctrine of separation of powers requires the court to not question, for example, a decision affecting foreign policy. It aptly pointed out that the very same principle requires the courts “to resist encroachment on the territory for which they are responsible”. The court emphasised that the threat was in essence aimed at its legal system, with the specific intention of preventing the SFO from continuing with the investigations and inspecting the Swiss bank accounts which could have resulted in embarrassing consequences for the Saudis, including the launch of criminal proceedings. The court pointed out that the threat was an attempt to pervert the course of justice, which includes the process of criminal investigation, and observed that “threats to the administration of public justice within the United Kingdom are the concern primarily of the courts, not the executive… Tempting though it may sometimes be for public authorities to yield too readily to threats of disruption, they must expect the courts to review any such decision with particular rigour. This is not an area where they can be permitted a wide area of discretion and… the courts will adopt a more interventionist role.”

The court ruled that the surrender of a public authority to threat or pressure undermines the rule of law and it is the obligation of the courts to protect the rule of law by upholding the principle that in exercising statutory powers an independent prosecutor cannot surrender to the threat of a third party, even when that third party is a foreign state and the rule of law is threatened from abroad. The court made the following significant observations: “There should be a resolute refusal to buckle to such threats… Surrender deprives the law of any power to resist for the future. Surrender merely encourages those with power, in a position of strategic and political importance, to repeat such threats in the knowledge that the courts will not interfere with the decision of a prosecutor to surrender.” The court solemnly warned that “for the future those who wish to deliver a threat designed to interfere with our internal domestic system of law, need to be told that they cannot achieve their objective. Any attempt to force a decision on those responsible for the administration of justice will fail, just as any similar attempt by the executive within the United Kingdom would fail.”

The judgment concludes by emphasising that the court “has a responsibility to secure the Rule of Law… No one, whether within this country or outside is entitled to interfere with the course of our justice. It is the failure of government and the defendant to bear that essential principle in mind that justifies the intervention of this court.” The judgment is a commendable vindication of the rule of law by courageous English judges, Lord Justice Moses and Justice Sullivan, who were not one bit influenced by the horrific consequences painted by the government if the investigations were continued. The judgment is a testimony to their judicial commitment that “the rule of law is nothing if it fails to constrain overweening power.”

In the celebrated judgment of our Supreme Court in Keshavanand Bharati, the rule of law has been declared to be an essential feature of the Constitution and part of its basic structure. However, if the bench comprised timorous judicial souls overborne by the executive’s strident assertions of danger to security and national interests, the rule of law becomes an empty high-sounding slogan. The rule of law in practice derives its vitality from the approach of brave judicial sentinels unafraid to enforce the rule of law and its principles against the high and the mighty, including the government of the day. The UK judgment is certainly worthy of emulation in countries whose legal systems adhere to the rule of law and who pride themselves on an independent judiciary.

The writer is a former attorney general for India

solisorabjee@hathway.com