One of the most stimulating-and lengthy-debates on Brian Barder's "magisterial" blog was on the post here in June 2005.
This selection of Brian's post got me and perhaps others going.
Are you seriously saying that in such circumstances ministers should have drawn back from doing what on all other grounds needed urgently to be done, for fear of provoking a terrorist attack in Britain? The Spanish electorate came perilously close to embracing that craven doctrine. I hope that we have a firmer grip on principle.
And the debate soon moved onto whether or not, and if so to what extent, any government should change its policy when threatened by terrorist act(s) .
My view at the time and, over the couple of years that have elapsed since 2005, has remained unchanged....... there must be circumstances when governments will and must change policy when faced with unusual and overwhelming threats.
This issue was discussed in some detail by their Lordships in the case of The Queen on the Application of Corner House Research and Campaign Against Arms Trade - and -The Director of the Serious Fraud Office- and -BAE Systems PLC. (pdf)
Anyone who enjoys the arrogance and illegality of Ministers excoriated in public would enjoy Lord Justice Moses' judgement, especially his last withering paragraph.
The court has a responsibility to secure the rule of law. The Director [of the Serious Fraud Office] was required to satisfy the court that all that could reasonably be done had been done to resist the threat [by the Saudi Arabian government to cut off intelligence leaving the UK open to imminent terrorist attacks]. He has failed to do so. He submitted too readily because he, like the executive, concentrated on the effects which were feared should the threat be carried out and not on how the threat might be resisted. No-one, whether within this country or outside is entitled to interfere with the course of our justice. It is the failure of Government and the defendant to bear that essential principle in mind that justifies the intervention of this court. We shall hear further argument as to the nature of such intervention. But we intervene in fulfilment of our responsibility to protect the independence of the Director and of our criminal justice system from threat. On 11 December 2006, the Prime Minister said that this was the clearest case for
intervention in the public interest he had seen. We agree.
But within the forty odd pages of the judgement, the court dealt with an issue akin to the Barder question. Their Lordships discussed the case of Leila Khalid.
[Counsel for the SFO Director] draws attention to the case of Leila Khalid in 1970 (described by Edwards, in The Attorney General, Politics and the Public Interest (1984) p.324). Khalid was a member of the PLO, in custody following her attempt to hijack an aeroplane. The PLO threatened to kill Swiss and German hostages, unless she was released. Sir Peter Rawlinson, the Attorney General accepted the advice that prosecution would increase the danger to the lives of those hostages and ordered her release. Edwards describes the decision as clearly defensible, since the Attorney General was faced with the awful dilemma of measuring the freedom and, possibly, the lives of the hostages against nonenforcement of the criminal law (p.325).
The release of Khalid was not the subject of any review by the courts. But we acknowledge that there may be circumstances so extreme that the necessity to save lives compels a decision not to detain or to prosecute. But it is for the courts to decide whether the reaction to a threat was a lawful response or an unlawful submission.
In the case of Khalid, those who had made the threat had the power to carry it out immediately; the Attorney General’s choice was to release Khalid or let the foreign nationals whose governments were in the process of negotiations be killed. Both in domestic and in customary international law [....] the law recognises the defence of duress and, in some circumstances the justification of necessity.
I'm sure it's possible to distinguish the Khaled case from the concept of a government "doing what on all other grounds needed urgently to be done, for fear of provoking a terrorist attack in Britain"
Faced with a threat by terrorists to to kill hundreds of innocent travellers on the London Underground, would it be acceptable for any UK government to tailor its foreign policy using to the Khaled defence?