Today's unanimous ruling by the House of Lords, overturning an earlier judgement and vindicating the Serious Fraud Office's decision to stop investigating corruption in the al-Yamamah arms deal, must rank as one of the most depressing ever delivered by a major British court.
Earlier this year, the Divisional Court led by Lord Justice Moses had declared that threats by a foreign power must never be allowed to divert the course of justice. In ringing sentences that deserved to echo down the centuries, Moses restated that no-one should be above the law, and that the rule of law must be considered paramount. "It is difficult to identify any integrity in the role of the courts to uphold the rule of law," he said, "if the courts are to abdicate in response to a threat from a foreign power." The submission on behalf of the Serious Farce Office was, thought Moses, "dispiriting"; faced with Saudi pressure and possibly empty threats to withhold intelligence co-operation, the SFO, in the person of its director Robert Wardle, had caved in. Or, to be more precise, Wardle had accepted the strong advice of the Prime Minister (acting via the Attorney General) and the British ambassador in Saudi Arabia to cave in. "For the future," said the judge, "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." Hence his strongly-worded judgement.
To read Moses LJ's opinion is to be shocked by the sheer cowardliness of the British authorities when faced with threats by Prince Bandar. Bandar, a long-standing friend of the Bush family, former Saudi ambassador to the United States, and a man of legendary profligacy, was accused of taking $Billion in bribes from BAe Systems for his part in lubricating the massive deal. The British response was to take the threats at face value and place the SFO under intolerable pressure to discontinue the investigation. They crumbled. As Moses put it:
No-one suggested to those uttering the threat that it was futile, that the United Kingdom's system of democracy forbad pressure being exerted on an independent prosecutor whether by the domestic executive or by anyone else; no-one even hinted that the courts would strive to protect the rule of law and protect the independence of the prosecutor by striking down any decision he might be tempted to make in submission to the threat.
It was argued that the Saudis were simply unable to understand the concept of the rule of law or of the independence of the criminal and judicial process; and that, therefore, it was no use trying to tell them otherwise. Repeated attempts were made to tell the Saudis this truth, the House of Lords said - but they wouldn't listen. This sort of hand-wringing is both patronising and surely mistaken. The fact that Saudi Arabia is an absolute monarchy does not entail that its rulers are so stupid as to imagine that all other countries are also absolute monarchies. On the contrary, all the evidence suggests that the Saudis in general, and Bandar in particular, had a very fair understanding of the British system. They were under the impression that its proudly vaunted independence was, in the final analysis, a sham, because if the Saudis demanded of British politicians that the investigation be stopped, it would be. They were right.
What Lord Justice Moses held - and this is why his ruling was potentially so important, and its loss today therefore so regrettable - was that the SFO director was legally obliged to resist that pressure - pressure which would, as he commented, have amounted in any other circumstances to a conspiracy to pervert the course of justice. If Wardle was not so obliged, if the option to yield to the pressure were available, then he would almost certainly be forced to yield. That, certainly, seems to have been the situation: it was accepted on all sides that Wardle had acted only with the greatest reluctance. But overruling his decision, then, Moses and his colleague Mr Justice Sullivan were providing both him, and the legal process, with a vital life-raft:
The courts protect the rule of law by upholding the principle that when making decisions in the exercise of his statutory power an independent prosecutor is not entitled to surrender to the threat of a third party, even when that third party is a foreign state. The courts are entitled to exercise their own judgment as to how best they may protect the rule of law, even in cases where it is threatened from abroad. In the exercise of that judgment we are of the view that a resolute refusal to buckle to such a threat is the only way the law can resist.
In comparison to those high-flown sentiments, today's decision by the House of Lords was shamefully defeatist. Even if Lord Bingham was right on the narrow legal point - that the SFO director was entitled to make the decision that he did - the implications are dire. Faced with an "ugly and obviously unwelcome threat", thought Bingham, Wardle was entitled to consider the implications for public safety and national security of disregarding it. His colleague Baroness Hale was equally lacking in the courage of her convictions. She states that she came to her decision with regret. She found it "extremely distasteful that an independent public official should feel himself obliged to give way to threats of any sort." Nevertheless, he did feel so obliged. "I wish that the world were a better place," she whined, "where honest and conscientious public servants were not put in impossible situations such as this." But what can one do about it?
Nothing, it seems. Lord Justice Moses offered the solution: remove the SFO director's discretion to take into account any extraneous factors, even "public safety", where public safety was being put at risk by blackmail by a representative of a foreign power. Force him to let justice be done, even if the sky falls. That way, Bandar's threats would have fallen on deaf ears. And if this deplorable man, and his deplorable government, had carried out their threats, had imperilled British lives in revenge for having their stinking corruption exposed to the gaze of the world, then that, too, should have been publicly exposed. That Mafia state, with its preening, money-grubbing, debauched princelings and a legal system that embarrasses the word "medieval", has been indulged for too long. The House of Lords, today, has opted to place their right to threaten our law-enforcement officials above the responsibility of those officials to apply British (and, indeed, international) law. What a sad day.