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Scales in their eyes

On Thursday, the British Attorney-General, Lord Goldsmith, announced that the Serious Fraud Office’s investigation into a BAE arms deal with Saudi Arabia would be shut down. Goldsmith’s statement in the Lords was subsequently reported as in his own voice, though he was purportedly relaying a statement from the SFO itself. The killer line:

It has been necessary to balance the need to maintain the rule of law against the wider public interest.

Whether this statement came from the SFO or, as perhaps seems more likely, was drafted on the SFO’s behalf by Goldsmith himself, its import is illuminating. Did you have the naive idea that the rule of law – “the absolute supremacy or predominance of regular law as opposed to the influence of arbitrary power”, as it is defined in Halsbury’s Laws of England – was itself precisely the central guarantor and safeguard of the “public interest”? That the supremacy of law over executive power was, indeed, the pillar of what we are pleased to call our democracies, as opposed to dictatorships? That, as Lord Falconer said only two months ago, “the rule of law must be paramount: because without the rule of law, we yield the very values which the terrorists seek to overthrow”? Even that the Attorney General’s role ought to be that of upholding the rule of law against political considerations? You are now to be relieved of those idealistic notions.

Instead, in the usual craven language of Blair’s government, a “balance” must be struck. To talk of introducing a “balance” strives to make the speaker seem reasonable, able to weigh competing considerations, prepared to listen to everyone and to compromise. But a call for “balance” is often, too, a nice strategy of Unspeak, for it constructs a stealthy division. Pretending to bring things together and rationally compare them, it may instead offer a false dichotomy, as in Blair’s fatuous call for a “balance” between “preserving a distinctive identity and integration” in the veil “debate”; or the false dichotomy between the “rule of law” and “the wider public interest”. Note, moreover, the ingenious allusion to a wider public interest, as though the rule of law were a narrow, pedantic, somewhat technical idea, of interest mainly to lawyers. And if the weighing mechanism is agreed to be the scales of justice, then putting justice itself in the balance is a transparently surreal ploy, something only Escher could illustrate.

Of course, once you have created the image of two things balanced on a set of scales, you have also already made the argument that their masses are identical, that they need to be considered as equal, just as the media like to “balance” a discussion of evolution with the creepy rantings of an “Intelligent Design” creationist, or a conversation on global warming with the viewpoint of an oil-company shill. In political uses of “balance”, then, there is no longer any such thing as an overriding principle of, for example, law or democracy: everything can be “balanced” against something else in order to legitimize executive desires. It is as though a defendant on trial for murder were to say: “I felt the need to balance the legal prohibition of murder against my lust to stab the victim repeatedly.” Such an argument is obviously risible; that Goldsmith and Blair nonetheless expect the public to swallow the same logic in regards to its dealings with Saudi Arabia (a state that still has them, you might say, over a barrel) merely illustrates once again their overweening contempt for us.

  1. 1  Graham Giblin  December 18, 2006, 12:39 pm 

    Yes but what if it is a “modern” balance?

    Like the frogs in the pot, the citizenry waits for a really clear and unequivocal SIGN that throughout the West the rule of law, the bases of democracy and individual liberties are being dismnantled one by one by people with some other agenda, while the evidence, which is all around, is dismissed with a “Nah, they wouldn’t do that, surely”.

    The problem, isn’t it, is that people like Goldsmith believe more in the divine right of Whitehall to govern in the traditional way than in the trinkets of law and democracy with which from time to time they dazzle or calm the herd.

    People, that is, like Lord Butler of Rockwell who amongst other things investigated secret arms sales to Iraq.

    His record as the former head of the civil service shows that he consistently showed deference to those in power. During the height of the Conservative sleaze scandals of the 1990s, Sir Robin, as he then was, chose to believe the dishonest arms sales minister Jonathan Aitken and attacked journalists who were investigating him.

    He followed this up by defending Whitehall deceit during the Scott inquiry into covert arms sales to Iraq. During that investigation too, he went out of his way to attack the media for undermining “our system of government” by what he called “grossly distorted and prejudicial allegations”.

    The picture of this bicycling Old Harrovian that emerged during both these scandals was of a patrician mandarin, protective of Whitehall pieties and resentful of those who sought to puncture them. [David Leigh, Richard Norton-Taylor and Julian Glover, Wednesday February 4, 2004, The Guardian]

    The trouble with this Saudi investigation is that Abdullah and other Saudis are reportedly backing the Sunnis in Iraq which means, surely, that Britain could be supplying arms which could kill their own soldiers. This would be embarrassing to the “establishment” and such emarrassment would not be in what Goldsmith might consider “the wider public interest”.

    The appeal to balance is also a way of giving equal validity to supposedly opposing but clearly not equally valid ideas. It is used most famously, as you say, in the falsely asserted equality of Evolution and Intelligent Design. They are both theories, therefore ID ought to be taught as an “equally valid theory” in science classes. However, as many like me assert, we demand a balance (if three things can be balanced) between Evolution, ID and the Flying Spaghetti Monster (may his noodley appendage be upon you).

  2. 2  DF  December 18, 2006, 12:45 pm 

    The balancing exercise descibed by the A-G is one which all prosecuting bodies in England and Wales are required to perform at the outset of every proposed prosecution, and to revisit throughout the course of a prosecution as necessary. It is called “the public interest test” and pre-dates the present administration. In fact it merely formalises the principle, deeply embedded in English law, that not all apparent breaches of the criminal law should be prosecuted. There will be many cases where the public interest in not so doing outweighs the presumption that there should be a prosecution. An terminally ill man, for example, might not be prosecuted for a first offence of shoplifting (but he might be prosecuted if the offence was murder). An allegation of cannabis possession that was thirty years old might not be prosecuted (but a very old case might be prosecuted if it was child abuse). And so on. National security is a factor that the A-G is required to consider when he undertakes the duty that he has to ensure that all prosecutions are in the public interest.

    The question here, as I understand it, is whether the balancing exercise, perfectly proper in itself, and indeed a legal obligation, was in fact influenced by national security considerations, or by those of diplomatic relations and commercial interests.

  3. 3  Graham Giblin  December 18, 2006, 12:47 pm 

    P.S. I should have credited the amusingly illustrated and caustic BuckFush blog for the Saudi leads. (They might suit your blogroll…)

  4. 4  Steven  December 18, 2006, 12:56 pm 

    DF, IANAL, but you appear to be speaking about balancing the utility of any one particular prosecution against the public interest, which of course is common. It seems to me, however, that this is quite different from the more remarkable claim to be balancing the rule of law in toto against the public interest, which is what the A-G actually said in the House of Lords, and hence the original post.

  5. 5  DF  December 18, 2006, 1:23 pm 

    For the executive to decide not to enforce the law against a particular individual, notwithstanding that according to the statute in question the individual would appear to be guilty under that law, is a derogation from the rule of law. We have long tolerated derogations of this kind, provided that in each case there has been a good reason why the presumption in favour of enforcing the law has been outweighed. Violations of the rule of law, as it were, “the other way”, ie prosecuting in spite of the fact that no clear law has been breached, should never be tolerated.

  6. 6  Steven  December 18, 2006, 1:41 pm 

    You appear to be using the phrase “the rule of law” in a special sense of “the assumption that all apparent crimes should be prosecuted”, which, however, is not the understanding I have of the traditional sense of the phrase from my reading of the various excerpts from Halsbury’s here.

    Taking the rule of law to mean, as it is widely supposed to mean, the supremacy of law over arbitrary exercise of power would, rather, seem to indicate that the per-prosecution balancing exercises of which you speak are already encompassed by the rule of law, and constitute no challenge to or derogation from it. It is quite legal for the A-G to recommend that a prosecution not take place, and so the rule of law is in no wise thereby harmed.

    Which if correct would make it all the more remarkable that the A-G, rather than simply claiming (quite reasonably in theory although controversially in this instance) that the particular BAE prosecution was not compatible with the public interest, instead chose to claim that that this was a case in which the rule of law need not be maintained.

  7. 7  Graham Giblin  December 18, 2006, 1:49 pm 

    Well, now. There is the case of David Hicks – one of many inmates of Gitmo, who was swept up in Afghanistan – an Australian (and now British) citizen who has now passed his 5th anniversary there, not only has habeus corpus been clearly violated but the Australian Government is urging the US Government to lay charges against him under the new “modernised” laws, because the Prime Minister, John Howard, presumes him guilty despite the fact there are no Australian laws unde which he could be charged, and probably no international ones either. Just George Bush’s.

    The question of Hicks’s British citizenship is under something of a cloud. As I understand it he applied on the basis of his parentage or grandparentage. The British Government opposed it but lost in court and the Government has not won any appeal. Unlike the several British citizens who were repatriated years ago, the British Government has not done as much for David Hicks. His lawyers are going to the Supreme Court here to try to force the Government to apply to the US for his release on the basis of habeus corpus.

    DF how does that fit with “Violations of the rule of law, as it were, “the other way”, ie prosecuting in spite of the fact that no clear law has been breached, should never be tolerated”?

    (This issue is having a surge of public support and is one of those which has the potential to topple John Howard’s government, except that no politician wants to be the one who is “soft on terrorism”.)

  8. 8  Richard  December 18, 2006, 3:29 pm 

    Is it faintly possible that Mohammed Atta imagined all this happening, as a result of driving three aeroplanes in to buildings? That the US, Britain and Australia would essentially give up their enlightenment principles because of his actions.

    Surely if he’d said as much to his colleagues, they’d have said “steady on, Mohammed – this is a long war we’re fighting; you can’t expect any one attack to achieve very much.”

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