UK GOVERNMENT SAYS IT WAS WILLING TO BREAK INTERNATIONAL LAW TO SQUASH BAE INVESTIGATION
In its response to a Corner House and Campaign Against the Arms Trade application for a judicial review of the UK Government’s decision to terminate the Serious Fraud Office (SFO)’s investigation into alleged bribery by BAE Systems in its dealings in Saudi Arabia, the UK Government states that it was prepared to break the OECD Anti-Bribery Convention in order to terminate the Serious Fraud Office inquiry into BAE’s dealings in Saudi Arabia. [1] The Government response was released following court action by the anti-bribery writer and campaigner Mark Thomas.
In their application, The Corner House and Campaign Against Arms Trade argue that the SFO’s decision breaches Article 5 of the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions (the OECD Anti-bribery Convention).
The Government response noted in paragraph 19, “It is true that the Director [of the SFO] considered, and remains of the view, that his decision to discontinue the investigation did not put the UK in breach of its international obligation [under the OECD Convention] . . . But this was not for him a critical or decisive matter: the threat to national and international security was such that, even if consideration of those matters had been contrary to that provision, he considered them to be of such compelling weight that he would still have taken the same decision.” (See footnote 1 below.)
This is contrary to what the OECD had been told by the UK in paragraph 10 of the note prepared by the Attorney General and the SFO of 12 January 2007 [2]
“The SFO and the Attorney General at all times had regard to the requirements of the OECD Anti-Bribery Convention. In particular, as the Attorney’s statement makes clear, the considerations set out in Article 5 of the Convention played no part in the SFO’s decision to discontinue the investigation”.[2]
The OECD and the UK Courts are being told two different stories. The OECD is being assured that the UK made every effort to comply with the Convention throughout. But the UK Courts are being told that the Convention was neither a critical or decisive matter.
The Corner House and Campaign Against Arms Trade believe that the UK’s contradictory position threatens fatally to undermine the OECD Convention. They therefore have urged that the OECD Anti-Bribery Working Group send a strong message to the UK that the Convention cannot be set aside in the manner that the UK has asserted it would be willing to do.
The Corner House and the Campaign Against the Arms Trade have also draw the attention of the OECD's Anti-Bribery Working Group to the UK’s claim that Article 5 of the Convention is not justiciable in the UK, a statement that blatantly conflicts with assurances made by the Government to the OECD during its 2005 Phase 2 Review of the UK's application of the OECD Anti-Bribery Convention. They have also urged the OECD to insist that the UK uphold its undertaking that “none of the considerations prohibited by Article 5 would be taken into account as public interest factors not to prosecute”.[3]
[1] Government response to Judicial Review application http://www.caat.org.uk/campaigns/controlBAE/Summary_Grounds_of_Resistance.pdf
[2] Attorney General and Serious Fraud Office, ”Serious Fraud Office Investigation into BAE Systems Note for the OECD by the Serious Fraud Office and Attorney General’s Office”,
[3] OECD Directorate for Financial and Enterprise Affairs, ‘United Kingdom, Phase 2 Report on the Application of the Convention on Combating bribery of foreign public officials in international business transactions and the 1997 Recommendation on combating bribery in international business transactions’, paragraph 171, p.54, available at
http://www.oecd.org/dataoecd/62/32/34599062.pdf.
