Politicians, when they pass draconian laws or make administrative decisions of convenience, often speak of the need to compromise our democratic principles in order to preserve “national security” or the “national interest”. In such circumstances, the keystone of our democratic system, the rule of law, receives little emphasis.
Last week, the Administrative Court of the Queen’s Bench Division of the High Court of Justice in London had cause to consider the importance of the rule of law as part of the national interest. Lord Justice Moses and Justice Sullivan, who constituted the court, placed a great deal of importance on the rule of law.
The cause of the court’s considerations was a decision in December, 2006, of the independent investigator, the Serious Fraud Office to terminate its investigation into allegations that arms supplier, BAE Systems, had bribed foreign officials in relation to the sale of military aircraft to the Kingdom of Saudi Arabia.
The immediate cause of the decision to drop the investigation was a threat by Saudi Prince Bandar al-Saud that, if the investigation was not stopped, the Saudi government would withdraw arms contracts from Britain and cease cooperating in the provision of security intelligence.
Government ministers, including Prime Minister, Tony Blair, passed on the threat to the Serious Fraud Office warning of serious consequences to national security and foreign policy objectives in the Middle East and the endangerment of the lives of UK citizens and service personnel. The Office stopped the investigation.
The Court pointed out that, if a UK citizen had made a demand that a criminal investigation be stopped, they would run the risk of being charged with attempting to pervert the course of justice.
The Court decided that, at the heart of the obligations of courts and judges, lies the duty to protect the rule of law. Courts do this by ensuring the independence of the decision-maker, free from pressure and threat. There would be no integrity in the courts’ role to uphold the rule of law if courts, themselves, abdicated in response to a threat from a foreign power.
In assessing whether the Office had acceded to the threat too readily, the Court was alarmed that no one in the government had attempted to explain to Prince Bandar that his threat was futile because the UK’s system of democracy forbad putting pressure on an independent prosecutor and that the courts would strike down any decision made in response to such a threat.
The Court stated that there was no distinction between the rule of law and national security. The decision quoted the UK Attorney-General’s statement, on an earlier occasion, that preserving the rule of law is an important part of securing democracy. The Court said it would intervene “
“to protect the criminal justice system from threat.”
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For those who think the rule of law is one of the more important aspects of our democratic system of government, the decision of Lord Justice Moses and Justice Sullivan was a most refreshing response to actions of a government who appeared more attuned to Saudi threats than maintaining the integrity of its own justice system.
The decision is a salutary modern reinforcement of the famous statement of Benjamin Franklin that “he who would put security before liberty deserves neither.”