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Wednesday, July 30, 2008 

A victory for the arms dealers, the kleptocrats and the government.

It's been buried thanks to the oh so exciting David Miliband article in the Grauniad, but the House of Lords today made a ruling which will potentially affect the rule of law and justice in this country for decades to come. Overruling Lord Justice Moses and Sullivan, who had came to the decision that the Serious Fraud Office had acted unlawfully in dropping the investigation into the BAE Systems slush fund, after the Saudis threatened not just to withdraw their co-operation on counter-terrorism, but also specifically made the chilling comment "that British lives on British streets" were at risk were it not be stopped, the law lords have very narrowly decided that the SFO director was acting lawfully.

Unlike Moses and Sullivan, the law lords have taken the view, like the government, that such threats are either a "matter or regret" or a "fact of life". It doesn't matter how outrageous the threats were, how if they had been made by a British citizen that he could have been charged with attempting to pervert the course of justice, as both the attorney general and Robert Wardle followed the correct procedures in deciding to drop the case, the Royal Courts of Justice were wrong in declaring that the initial decision was unlawful.

Legally, this can be understood and accepted. It however frightfully ignores the much larger, bigger picture: that the UK government was to all intents and purposes being blackmailed by one of its supposed allies. That is of course if we accept that the threats were to be followed through, which in itself is by no means clear. Even if the Saudis had withdrawn their counter-terrorism co-operation, all such information is now pooled between the main intelligence agencies, meaning that the CIA for one would have forwarded it on to MI5/6 as a matter of course. To give the impression that this threat was more real than it was, the Saudi ambassador expressly made the statement that "British lives on British streets" were at risk if the inquiry was not dropped. Rather than tell the Saudis to get off their high horse and make clear that due to the separation of powers such an investigation could not be called off by politicians, the government meekly gave in, as Moses and Sullivan initially ruled. Robert Wardle, the director of the SFO, had little choice but to cancel the inquiry, as it was clear if he didn't the politicians, including the attorney general, would go ahead and do so anyway.

It takes a moment to digest exactly what sort of precedent this sets. This ruling more or less means that any foreign power, whether an ally or not, can threaten our national security whether directly or indirectly in any case where one of their citizens or otherwise is being tried or even investigated, and we the citizens can do absolutely nothing to challenge the government if it decides that such threats are serious enough to drop that investigation or trial, as long as they have acted appropriately, as the law lords decided Wardle and Lord Goldsmith had. Say that by some miracle or another that the man accused of murdering Alexander Litvinenko, Andrei Lugovoi, was captured and to be put on trial. Russia wouldn't even have to necessarily threaten violence to stop the trial, all it would have to do is threaten to sever ties on helping with national security, or to not pass on information it has on terrorist activities, and the government could therefore conclude that as more lives than just one are being threatened, it would be perfectly lawful for the prosecution of Lugovoi to be dropped.

In practice, it's unlikely that such an extreme case would ever occur. No, what instead is apparent here that from the very beginning the government wanted the SFO inquiry into the slush fund dropped, not because the Saudis were making threats, but because BAE themselves wanted it dropped. It's been established time and again that BAE may as well be a nationalised company, such is the power it has over ministers. The Guardian's expose which initially altered the authorities to the slush fund connected with the al-Yamamah deal was severely embarrassing, even if it didn't have New Labour's fingers all over it. It proved what long been suspected: that BAE and the government had provided the Saudis with massive sweeteners so the deal went ahead, potentially over a £1bn in bribes, which enabled Prince Bandar to buy a private jet, and which was also spent on prostitutes, sports cars and yachts among other things. All of this is helped along through massive public subsidy: up to £850m a year. In other words, we are directly funding the Saudi royal family's taste in whores and vehicles, while its people suffer under one of the most authoritarian, discriminatory and corrupt governments in the world. Despite everything else, it really is all about the arms deals and the oil. The government got its way because it realised it could rely on the spurious defence of "national security". Moses and Sullivan didn't fall for that. The law lords don't either, and one of them, Baroness Hale, even made clear that she was very uncomfortable with having to overrule them, but had little legal option other than to.

The government response to the initial ruling, which understandably horrified them, was to completely ignore it except to appeal against it. There doesn't seem to have been any reaction today either. The groups that brought the initial challenge, CAAT and Corner House were far from silent:

Nicholas Hildyard of The Corner House said:

"Now we know where we are. Under UK law, a supposedly independent prosecutor can do nothing to resist a threat made by someone abroad if the UK government claims that the threat endangers national security.
"The unscrupulous who have friends in high places overseas willing to make such threats now have a 'Get Out of Jail Free' card -- and there is nothing the public can do to hold the government to account if it abuses its national security powers. Parliament needs urgently to plug this gaping hole in the law and in the constitutional checks and balances dealing with national security.
"With the law as it is, a government can simply invoke 'national security' to drive a coach and horses through international anti-bribery legislation, as the UK government has done, to stop corruption investigations."

Symon Hill of CAAT said:

"BAE and the government will be quickly disappointed if they think that this ruling will bring an end to public criticism. Throughout this case we have been overwhelmed with support from people in all walks of life. There has been a sharp rise in opposition to BAE's influence in the corridors of power. Fewer people are now taken in by exaggerated claims about British jobs dependent on Saudi arms deals. The government has been judged in the court of public opinion. The public know that Britain will be a better place when BAE is no longer calling the shots."

This ruling, as if it needed stating again, is far, far more serious than last week's involving Max Mosley. The media however on this case, with the exception of the Guardian or Independent fully supported the government's craven surrender, and will do the same over today's decision. When it personally affects them and their business models they will scream and scream until they're sick; when it potentially means, however spuriously, that "lives are at risk", they jump straight behind the government, and, of course, the money. Such is how democracy in this country works. The rule of law, justice being blind and everything else associated always comes second.

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