BAE case in the Lords

CAAT News | The five senior Judges are technically a committee of the Lords so the hearing took place in a Lords’ Committee room, dominated by a huge painting of the burial of King Harold. Only the tops of the heads of the Judges (without wigs) were visible from most of the public seats as the banks of case documents formed a wall across the room. Between the Judges and the rest of us sat eleven bewigged barristers — CAAT and The Corner House had four (David Pannick QC, Philippe Sands QC, Dinah Rose QC and Ben Jaffey) and the Government five, whilst ‘interested party’ BAE, and ‘intervener’ Justice, a human rights and law reform organisation, had one apiece. All these barristers were backed by teams of solicitors. Even though the Lords’ authorities had added an extra bench, this retinue left little space in the room.

We all crammed in — CAAT and Corner House people; the Guardian‘s Rob Evans, who had done so much to expose the BAE corruption allegations, was there along with journalists from other papers, the BBC and specialist legal magazines; representatives from the Organisation for Economic Cooperation and Development, concerned that its 1997 Anti-Bribery Convention will be rendered meaningless if the Government is allowed to stop corruption inquiries as in this case, took copious notes; Peter Gardiner, the former BAE travel agent who gave evidence to the SFO looked on; and many others were present.

The arguments

The Government’s lead barrister, Jonathan Sumption QC, went first. He argued that the Director of the SFO, as an independent prosecutor, had a wide discretion as to which cases he investigated or prosecuted, he just had to act ‘reasonably’ in making his decisions. He also produced a witness statement from the Foreign Office in an attempt to show that, in contrast to what Lord Justice Moses had said in the High Court, the attention of Saudi Arabian officials had been drawn to the separation of powers between the Government and the legal authorities in the UK.

David Pannick challenged this. He said the rule of law had to prevail and that this demanded that the SFO did not give into threats by Saudi Arabia to withdraw cooperation on anti-terrorism until all other options had been exhausted and, even then, only if it was strictly necessary. The Government, he said, did not meet this test, as all bar one of the approaches to Saudi Arabia listed in the Foreign Office statement had been made before the threats were issued and all were fairly casual mentions in the course of other meetings. Additionally, the UK did not seem to have reminded Saudi Arabia of its anti-terrorism commitments.

With regards to the OECD Convention, Dinah Rose argued that this was a relevant consideration because the SFO Director said his decision was made in accordance with it — the question was whether ‘national security’ was an implied exemption or not and she said not — whilst the Government said it was up to the OECD to decide on this issue.

No decision as yet

There was very little intervention by the Judges as the barristers made their submissions. This, we were told, is unusual. Each of five Judges now considers the submissions, looks up the precedents and writes his or her own speech — the verdict is the majority view. The result will be announced, most likely in October, when the Judges’ committee reports to the full House of Lords. Justice?

Campaign update

The House of Lords has overturned the High Court’s ruling that the Government broke the law by stopping the corruption investigation into BAE Systems’ Saudi arms deals. The case had been brought by CAAT and The Corner House with widespread support.

The Serious Fraud Office’s appeal was heard by the House of Lords on the 7th and 8th of July and judgment was given on 30th July.

One of the judges, Baroness Hale, said that she would have liked to have been able to say that it was wrong to stop the investigation as it was “extremely distasteful that an independent public official should feel himself obliged to give way to threats of any sort.” However, she had to agree with her colleagues that the decision taken by the SFO Director was lawful.

The judgment means that those with powerful friends prepared to make threats can effectively evade justice, particularly if the threats are couched in terms of national security. The ruling also confirms that the UK government has driven a coach and horses through a key international anti-bribery convention to protect its friends in BAE.

CAAT and The Corner House are not dejected by the result as it has brought the whole issue into the public realm and clarified the law.