Science, People and Politics. First volume (1-3), Volume iii, issue 5, September-October 2008.

Arms deals as seen through the prism of British Aerospace
and the UK serious fraud office

Not long before Robin Cook (1946 - 2005), former British Foreign Secretary, died I saw him hurrying past as I was drinking coffee around the corner from Portcullis House in Westminster. I was on my way to interview Ian Gibson MP who had just, in his own colourful words, been shafted and deposed as chairman of the UK House of Commons Select Committee on Science and Technology. Gibson's office was in Portcullis House in Westminster. I do not know where Robin Cook was going, but he was frowning mightily. That his aspiration to an ethical foreign policy was not going too well was what I thought might be the problem. Cook espoused that policy on becoming Foreign Secretary in Tony Blair's first cabinet. By the time he resigned from government in protest at Britain's part in the 2003 war with Iraq Cook was Leader of the House. With his resignation he reaffirmed the morality he as an individual expressed when he promoted the idea of ethics in foreign policy in the UK - an issue actually separate from whether or not war with Iraq was ethically right or wrong.

Between the personal ethics of public figures such as Robin Cook and national policy can sometimes lie a great abyss, with resignation the only possible bridge keeping that person psychologically whole and true to him or herself.

Civil servants, by contrast ought never to feel pushed by the system to resign. They do not have an MP's salary to fall back on nor the House of Commons in which with parliamentary privilege they can air their grievances and through which they can redress their disquiet. They do have recourse to the law, and that is where the director of the serious fraud office turned when he came under fierce pressure to discontinue his inquiry into allegations of corruption by British Aerospace and its employees. Of particular concern was a contract known as the Al Yamamah contract. The pressure to discontinue his investigation grew so intense that it succeeded, and the lords appellate, while reserving their private opinion, found on 30 July 2008 (2008 UKHL 60 on appeal from 2008 EWHC 246 (admin) that in bowing to the pressure that finally swayed him the director had acted lawfully. At issue for the law lords was not the question of whether the director made the right decision, but whether he had a right to make a decision. Overwhelmingly they argued and said unanimously that he did have the right to decide.

The director made his decision to discontinue the serious fraud office's investigation on 14th December, 2006. Pressure had come from the Prime Minister down and from mid October 2005, but the director did not decide to call a halt to the investigation until told three times in November and December 2006 by the British Ambassador to Saudi Arabia that there was a threat to British lives on British streets if the investigation did not stop. Taking such advise into account was wholly defensible say the law lords in their discussion supporting their judgement about the legality of his right to make a decision. The law lords would have found the director making his decision to be lawful even had the director decided not to stop the investigation.

In reaching their conclusion the law lords laid out painstakingly the chronology and legal questions crucial to their reasoning. In particular they looked at how the Organisation for Economic Co-operation and Development's Convention on Combating Bribery of Foreign Public Official in International Business Transactions interacted with national public policy and laws.

It is hard to fault the law lords on their own ground. They cover all the bases, and are remorseless in their logic. So the ground must be shifted, because something does not smell right, and the ground to be opened needs to be in the House of Commons and its committees. They and they alone have the muscle to take on the Prime Minister, an ambassador, the issue of national security and the interpretation in national law of an international convention. If the House of Commons does not take up the slack in the case it seems to me they are shirking their responsibility of holding the executive to account, of backing up the executive in the face of what seems to be foreign threats, of identifying gaps in the administrative structures nationally and internationally and of being aware of the impact on national law of international treaties and conventions. Silence would make the Commons intellectually flabby. Debate and select committee queries could be a masterclass in political oversight and development.

From this case the House of Commons could clarify how legislation might be strengthened in the vexed area of arms deals, and could review whether all relevant clauses in international conventions and treaties which have a bearing on arms deals have been properly transposed into national law. Such clauses do not come conveniently labelled "relevant to arms deals", as is clear from this case. In this case the law lords pointed out the under the European Convention on Human Rights the director and the government have a duty to protect the lives of British citizens, whilst the OECD Convention on Combating the Bribery of Public Officials in International Business Transactions precludes the serious fraud office from bowing to concerns about national economic interests, impact of investigations on relations with another state or the identity of the company or individual under investigation. The same is not the case for national security. In their judgement of 30 July 2008 the Lords wrote that there was nothing in the convention to prevent attention being paid to national security concerns, and they acknowledged it was reiteration by the British Ambassador to Saudi Arabia of threats to British lives on British streets if the Al Yamamah investigation continued that finally convinced the director to halt that investigation.

Now that might be legally right and proper given the limits of his powers. But is it right and proper in an absolute sense? Somehow the law legally has allowed an experienced and senior investigator to be railroaded. The result is that BAE and its employees might be totally innocent but there is a nasty whiff in the air.

If the Saudis are justifiably indignant that Swiss bank accounts are to be examined -- the serious fraud office's intent to investigate bank accounts prompted Saudi threats of withdrawal from national security co-operation - then why did the Saudis not take legal action in Switzerland against the banks to prevent them disclosing bank information. In making their case surely the Saudis would have been able to show how groundless the action by the serious fraud office was -- if it was.

And if there is a threat to British lives on British streets because of proposed investigation of bank accounts then it seems likely that somebody, somewhere, somehow is breaking a law somewhere. Hence the need for the House of Commons to ask some piercing questions of the executive and its agencies and civil servants. Defence of British lives on British Streets falls squarely into the legal and political remit of the House of Commons.
Helen Gavaghan.

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