Where does the BAE case leave international law?

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John Jackson (London, Mishcon de Reya): At the end of her judgement in the BAE case one of the law lords, Lady  Hale, said “- - I would wish that the world was a better place where honest and conscientious public servants were not put in impossible situations such as this - - -“. I would wish that too. I would also wish that people and nations did not seek to advance their interests by violence or the threat of violence. If that were so there would be no need of armaments industries and questions of national security could be dealt with in a more open and satisfactory way.

The impossible situation to which Lady Hale referred was the dilemma confronting the Director of the SFO in deciding, with incomplete information, whether, to quote Lord Bingham, “the public interest in pursuing an important investigation into alleged bribery was outweighed by the public interest in protecting the lives of British citizens”. The incompleteness of information available to the Director is the link to my second wish and my remark about how questions of national security are dealt with.

Earlier in her judgement Lady Hale, discussing the reliance of the Director on the judgement of others as to the existence of a threat to “British lives on British streets”, said “- - - in the end there are some things upon which others are more expert than he can ever be - - -“ and “Eventually, he has to rely on the assurances of others that - - - the threats are real and the risks are real.”

Although the Administrative Court had been shown unredacted versions of documents which the Government had contended should not be disclosed (and had issued Public Interest Immunity certificates to that effect) so it could satisfy itself that the challenge to the Director’s decision was not being resisted on a misleading factual basis, the fact remains that remarkably little has emerged about what was said to the Director and, particularly in respect of our Ambassador to Saudi Arabia, how he was able to assess its accuracy and weight. This is why what has happened in the courts can be described as a colourful play conducted in front of a grey impenetrable wall behind which the real action takes place.

This is one origin of continuing disquiet about this case. And it adds to the worries about the competence and integrity of our security services (and of the Ministers to whom they report) which were sparked off by the invasion of Iraq. Although the judges have resisted government pressure to accept that politicians are better able to settle the balance between national security and other interests (most notably in the Belmarsh case) and reminded a Home Secretary that the judiciary and the executive are not “on the same side”, they cannot penetrate the grey wall either and should not attempt to do so.

The question of how our national security arrangements are dealt with screams for parliamentary – not judicial -  attention. And if we had a better situation in which a parliament constructed on a truly democratic and representative basis was less frightened of taking both initiative and of holding government to account it would happen. If it does not it is “we the people” who should be blamed. We need to do more than mutter, snipe, exercise our collective paranoia and examine whether others are doing their jobs. We should insist on constitutional reform.

There was another aspect of the national security question discussed extensively in the BAE case. The 1997 OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions has not been incorporated in our domestic law. Unincorporated treaty obligations cannot be the subject of proceedings in our courts, they can only be dealt with in the relevant international court. There is sense in this: it ensures uniformity of interpretation for all the nation states party to a treaty.

The creation in 2001 of an offence triable in the UK for a UK national or company to make a corrupt payment or pay a bribe to a public officer abroad gives effect to our obligation under the OECD Convention but no more than that. The significance of this is that Article 5 of the Convention, which provides that investigation and prosecution of bribery “shall not be influenced by considerations of national economic interest, the potential effect upon relations with another State or the identity of the natural or legal persons involved”, can be ignored, as a matter of law, by our prosecuting authorities.

However, in the BAE case the Attorney General and the Director of the SFO declared publicly that they would comply with the UK’s obligations under Article 5 and, later, that the decision to stop the investigation did not violate the Article because “national security” could be distinguished from “relations with another State”. This interpretation of Article 5 was challenged by the Claimants who said additionally that the public statements of compliance by the Attorney and the Director made the matter justiciable by the British domestic courts.

The Law Lords discussed extensively, but did not rule on, the highly contentious interpretation question but found against the claimants on justiciability partly because the Director had made clear that, despite his previous public statements, he would have stopped the investigations on national security grounds even if he believed, which he did not, that to do so violated Article 5.

This decision has also caused some unhappiness. It raises two questions: is it sensible in the modern world to maintain a strict division between domestic and international law? And how does acceptance by the Law Lords of what the Director, a very senior public official, was entitled to do square with the last of the eight sub-principles of the rule of law previously enunciated by Lord Bingham himself -  “The State should comply with its obligations in international law, whether deriving from treaty or international custom and practice.”?

There is not a simple answer to either of these questions. Perhaps Lord Bingham could consider them and postulate some answers in the quietness of his retirement. 

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