Further to my point about the links between government and the arms industry, it's worth checking out this post by Craig Murray on the cosy relationship between Jack Straw and British Aerospace.

Stuart,

This becoming a really interesting discussion. I will respond to what you say in a post - tomorrow I hope - picking up on two important aspects of the national security point which emerged from the Law Lords judgement. In my view rather more interesting - and difficult to deal with - than the inventions of Moses LJ.

John Jackson is a very fine and imaginative lawyer, and I am not a lawyer at all, except of the barrack-room tendency, and so I cannot comment on the legitimacy of what Lord Justice Moses found when he poked about in his wig or hat. I do however understand that the law lords' decision on the legality of the SFO's withdrawal for the investigation into the BAE's apparent bribery in the Saudi ams deal was confined to the conduct of Robert Wardle, the then head of the SFO, and did not therefore extend to the conduct of the Prime Minister or his close friend, the Attorney General, or that of the then ambassador to Saudi Arabia.

So perhaps the law lords could have come to no other conclusion - but who knows, our judges are remarkably adept of pulling constitutional rabbits from under their wigs when it suits them? But I am with Lord Justice Moses, on democratic principle, if not strict legal precedent. I agree of course with John that the judges must leave governments space to get on with their democratic business, but they must do so within clear rules and principles - that is, under the rule of law. Our uncodified constitution is notoriously open to finagling when it suits politicians and ciovil servants alike, and is especially vulnerable once they call in aid "national security" - at which point the judiciary display real as opposed to formal deference. Others have shown how rules have been bent in this case so I will go on to discuss the role of judges. As Keith Ewing, who has the benefit of being a lawyer, has shown, the judges have not been very effective either in protecting us and, more to the point, vulnerable individuals and their families, from the excesses of the government's counter terrorism laws. It is about time for lawyers and lay people to consider exactly how well the judiciary performs. and the principles upojn which they act, with the aim both of protecting the rule of law, habeas corpus and civil liberties.

Guy,

The decision was not taken by the Attorney General. It was taken by
the Director of the SFO exercising powers given by him to Parliament.
It is correct that the Attorney, who superintends the SFO, reviewed the
case in detail. It is also correct that the Director consulted the
Attorney as he was entitled, but not obliged, to do.

It was never suggested that the Attorney had attempted to direct the
SFO. It would have been improper and unwise for him to have done so.
The Attorney did discuss with the Director the possibility of stopping
the enquiry because it was unlikely that sufficient evidence to mount a
successful prosecution would be available. When the Director stood out
against that the Attorney accepted his decision.

When the Dirctor informed the Attorney of his final decision it was
the Attorney who, perfectly properly, informed Parliament via a
statement in the Lords.

It is worth noting that in his judgement Lord Bingham observed that
the reference to a "threat" being a "useful pretext" in the judgement
delivered in the lower court by Moses LJ should not be understood as
reflecting on the good faith of the Attorney or the Director which had
never been in question.

Thanks for the clarifications John. I think the essential point about the "national secuitry" get out has been well made by Tom and James. I'll be interested to read your post on this.

I understand that the judges could not infer that Blair had lent on the SFO.
But how does the role of the Attorney General fit into this? Surely his decision to stop the investigation was a political decision by a member of the government.

While I don't demur from John's analysis about the legal position, I have to say I'm uncomfortable about any blanket "national security" get out and this case highlights it.  There is a difference, surely, between an investigation being stopped because of national security because it might compromise a neccessary action of the government and responding to what in this case does clearly resemble blackmail.

In such a circumstance, surely the SFO shouldn't stop the investigation but suspend on the grounds that it is being prevented from carrying out its work and refer it to the intelligence services for action?  That would prevent someone like Robert Wardle from being put in such an invidious position and put the onus on sorting out the national security "threat" so that the investigation can continue.  As it stands, justice and national security are being presented as opposing principles when in the longer term they are surely synonymous?

Guy,

The point is that the case was not about a decision by the government. It was about a decision by an independent public official (the Director of the SFO) using a discretionary power given to him specifically by Parliament. The Law Lords found that the director had (courageously) acted lawfully and had maintained his independence. Lord Bingham said, very pointedly, that what the director had done was entirely consistent with the rule of law.

I have little doubt that Downing Street was very concerned about both security and the commercial implications of the Saudi threats. The Saudis had already opened negotiations with the French as an alternative supplier of fighter aircraft. I also have little doubt that Lord Goldsmith was well aware of the latter and was worried by it because a decision to stop the investigation on those grounds would have been clearly unlawful. That was, probably, the origin of Goldsmith's search for "another way out" – insufficient evidence to support a successful prosecution. The Law Lords were clearly alive to this aspect and found that the Director of the SFO had stood out against Goldsmith and acted solely on the threat to national security – "British lives on British streets".

Tom,

There is much in what you say. It touches on another very interesting aspect of the judgement. I will be writing another post on this. It takes us right back to one of Lord Bingham's eight sub principles underlying the rule of law.

Allowing prosecutions to be stopped on national security grounds hands a lot of power to the security services, who in some people's 'fevered imaginings' may have even more to lose from scrutiny of Al Yamamah than the Saudis.

"Moses enthusiastically set about finding a judicial principle that would support the decision he was determined to make. For as he saw it, the rule of law itself need the special protection of our courts"

But John didn't you endorse the remarks made by Lord Bingham in 2006 to the effect that the 2005 Constitutional Reform Act establishes the "rule of law" as an "existing constitutional principle" and therefore judges have the power to invalidate government actions inconsistent with the "rule of law"? At least that's what I took from your OK article on the Bingham lecture.

In that article you also appear to endorse Lord Steyn's remarks in your 2004 case against the Parliament Act. Steyn claimed that principle was already latent within the British constitution.

Perhaps you could explain why the "judicial activism" of Moses is so much worse?

You also claim that any suggestion there was a commercial motivation behind the decision to drop the BAE case is the product of "fevered, spiteful and politically inspired imaginings". From what he know about the nexus of interests between government and the big business (especially the arms business) this seems naive.