Evidence submitted by Graham Rodmell,
Transparency International (UK)
Transparency International (UK) [TI(UK)] has
previously made written and sometimes oral submissions on the
role and responsibilities of the Attorney General in the context
of the United Kingdom's obligations as a Contracting State to
the OECD Convention on Combating Bribery of Foreign Public Officials
in International Business Transactions 1997 [OECD Anti-bribery
Convention] as also in connection with proposed reform of the
UKs anti-corruption laws. Relevant extracts from two earlier submissions
are in Appendices 1 and 2.
The current submission arises in the narrower
context of the Committee's review of the Attorney General's role
in relation to possible prosecutions arising from the pending
criminal investigations popularly encompassed by the phrase "cash-for-honours",
on which there have been exchanges between the Committee and the
Lord Chancellor, between the Committee and the Attorney General
and the Attorney General and the Shadow Attorney General, Dominic
Grieve MP. Since those exchanges, the Attorney General made a
statement in the House of Lords on 14 December 2006, announcing
the decision of the Director of the Serious Fraud Office to discontinue
the criminal investigation of BAE Systems plc concerning payments
made in relation to the Al-Yamamah programme with Saudi Arabia.
That decision and the involvement in it of the Attorney General
and other members of the Government raise very serious concerns
over the constitutional propriety of the Attorney General's roles,
and his ability to perform them in a manner consistent with the
public interest in the maintenance of both the Rule of Law and
the highest standards of public conduct, and also in conformity
with the obligations of the United Kingdom as a party to the OECD
Anti-bribery Convention.
In recent statements, the Attorney General has
cited his statutory responsibility in relation to a small number
of criminal offences. Of long-standing concern to TI(UK)—as
also to the OECD Working Group on Bribery—is the requirement
for the consent of the Attorney General to prosecutions under
the Prevention of Corruption Acts 1889 to 1916. That restriction
has been criticised by the Working Group on Bribery as inconsistent
with Article 5 of the OECD Anti-bribery Convention which requires
that the investigation of the bribery of a foreign public official
should not be influenced by considerations of national economic
interest, the potential effect upon relations with another state
or the identity of the natural or legal persons involved. The
Working Group also took note of the absence of any consent requirement
for the common law bribery offence. TI(UK) shares that concern
[see appendices 1 and 2].
The Joint Parliamentary Committee who considered
the 2003 Corruption Bill was critical of the restriction, and
recommended that the proposed legislation change it so that consent
to prosecute was removed from the Attorney General, and left to
the normal and appropriate operational considerations set out
in the Code for Crown Prosecutors exercised by the Director of
Public Prosecutions, the Director of the SFO or other strictly
independent official, well capable of considering the relevant
factors, including by seeking independent specialist advice where
circumstances require. This would have advantages in terms of
perception, but would leave the Directors subject to the pressures
of advice of the type summarised below that were referred to in
the statements of 14 December 2006. TI(UK), for the reasons mentioned
in the Appendices, remains unconvinced that any special filter
of consent is required for these offences. Hence the Corruption
Bill drafted on the instructions of TI(UK) and introduced in both
the House of Commons (May 2006—10-minute rule) and House
of Lords (November 2006) omits any such consent.
As TI(UK) understands it, the reason why the
1906 Act introduced a requirement for the Attorney General's consent
to prosecute was because of the novelty of public officials and
politicians being prosecuted for corruption offences whereas previously
they had enjoyed effective immunity. Parliament felt nervous about
such possibilities and intentionally decided to ensure
that a member of the government could always intervene as a
political act to prevent prosecution. A century has passed,
and public expectations of standards in public life have changed
radically. It is neither appropriate nor acceptable for a member
of the government to act as a "choke" to stop prosecution
of a public official or politician. Although the Attorney General
might assert that in so acting he is not exercising a political
role, the role has not altered since it was introduced for overtly
political reasons 100 years ago.
In relation to the "cash-for-honours"
affair, the Attorney General maintains that for the small number
of possible offences for which his personal consent is required:
`It is not one which can be avoided. Nor can the consent power
be delegated by the Law Officers to any third party.' (Letter
from Lord Goldsmith to Dominic Grieve MP dated 7 November 2006)
The Attorney General thus confirms that the consent is of an essentially
political character, incapable of being performed by anyone not
a member of the government. The conflict of interest, as noted
by the OECD Working Group on Bribery, is palpable. The government
has a right, exercisable by one of its members, to stop a prosecution
of another of its members, for reasons that are neither specified
in the 1906 Act nor seemingly need to be objectively justified.
The inconsistency with the United Kingdom's obligations under
the OECD Anti-bribery Convention is manifest.
The Attorney General goes on to discuss his
role in relation to those prosecutions for which his personal
consent is not required. Without making any distinction in the
political character of his conduct, he points to his statutory
responsibility for the superintendence of the CPS and states:
"It is therefore normal for the CPS to consult the Attorney
General on any sensitive case." Thus, again, it appears that
the Attorney General sees his supervisory role, which emanates
from his membership of the government and for which he "answers
to parliament", as giving him the power to interfere in prosecutions
even where there is no statutory need for his consent. This goes
far beyond any conceivable role that any member of government
should play in the administration of justice, and breaches the
constitutional separation of powers on which the Rule of Law depends.
Whereas on "cash-for-honours", the
Attorney General has discussed his power to stop prosecutions,
in relation to BAE Systems and Al Yamamah, he has sought to justify
his role in the decision to discontinue the criminal investigation,
ie well in advance of any decision to prosecute. For this, there
is no statutory basis; nor does he cite his supervisory role as
a member of the government. Were he to do so, he would surely
invite the charge of political interference in the administration
of justice, which is clearly what such a role involves. Instead,
he maintains an extra-governmental role as "guardian of the
public interest". This is an aspect of the office of Attorney
General which seemingly involves no political role; but wholly
depends on his identification of where the public interest lies,
and then acting so as to protect or maintain such public interest.
Oddly, he is not expected to decide what the public interest is;
but to ascertain it from his colleagues who of course are acting
politically. The official account of the Attorney General function
here distinguishes his role as the Government's Chief Legal Adviser,
where he acts "on behalf of and as a member of the Government".
This includes his supervisory role over prosecutions.
Where, on the other hand, the Attorney General
acts as guardian of the public interest, he is acting in a wholly
independent and quasi-judicial capacity and not as a member of
the Government. In carrying out such public interest functions,
the Attorney General may seek the views of Ministerial colleagues
on where the public interest lies (through what is known as "the
Shawcross exercise"), but ultimately the relevant decision
is for him alone. (extract from paragraph 1.17—"Office
of the Attorney General—Publication Scheme")
The distinction may be hallowed (at least from
the period when Sir Hartley Shawcross was Attorney General); but
is surely spurious. The Attorney General cannot be expected to
know what the public interest is in relation to a specific criminal
investigation; and so is expected to find out by asking his government
colleagues. They are subject to no independent constraint and
tell the Attorney General where, politically, the land lies. Merely
by passing such views through the medium of the Attorney General,
such views are translated into an objective and "independent"
judgment (note: quasi-judicial) declaration of the true
public interest.
There is no mention in the official account
of the need to balance this contrived `public interest' with the
manifest public interest in the maintenance of the Rule of Law
and the independent administration of justice. In his parliamentary
statement of 14 December 2006, the Attorney General attributed
to the SFO Director the need "to balance the need to maintain
the Rule of Law against the wider public interest." In such
balancing, if the BAE Systems/Al Yamamah case is typical, the
Rule of Law will always come in second place, because the Attorney
General, whose advice to the SFO Director was plainly critical,
gave no evident weight to it at all. It was sufficient, it seems,
for the Prime Minister together with the Secretaries of State
for Foreign Affairs and Defence to declare the public interest
in stopping the prosecution for that to become the public interest
that the Attorney General adopted under the "Shawcross exercise",
on the basis of which his emphatic advice was given to the SFO
Director.
The precise content of the various statements
and advice passing between members of the government, including
the Attorney General, and the Director of the SFO will emerge
under Freedom of Information Act requests or in the course of
pending legal proceedings. What is already evident is that the
Attorney General is not in reality capable of performing the dual
function as member of the government (including both his advisory
and supervisory roles) and as some "wholly independent and
quasi-judicial" guardian of the public interest. If
there is in truth a need for such a function at all, it can surely
be better performed by a judge who is independent of government.
This Government has recognised the true function
of the Lord Chancellor and, despite criticism, has taken appropriate
measures to disentangle that political office from the artifice
of distinct legislative, judicial and executive roles. The complexities
of the Attorney General's discordant functions are of a lesser
nature; and can surely be readily resolved—irrespective
of the desirable reform of Home Office functions. TI(UK) urges
that the Committee recommend these changes.
Given the surely unprecedented expression of
serious concern by 35 of 36 signatories to the OECD Anti-bribery
Convention [see Appendix 3], the strengthening of the reputation
of the UK in tackling international corruption requires that these
changes be made.
January 2007
Appendix 1
EXTRACT FROM
SUBMISSION OF
TI(UK) TO THE
JOINT PARLIAMENTARY
COMMITTEE ON
THE DRAFT
CORRUPTION BILL
2003
Attorney General's consent to prosecution
3.15 TI(UK) considers that there should
be no requirement for the AG's consent to prosecution of offences
to be created by the new legislation. It is claimed that the AG's
consent (clause 17) is required to counter the risk that the right
of private prosecutions will be abused and the institution of
proceedings will cause the defendant irreparable harm. Evidence
of such risk is lacking. There is no corresponding requirement
for the comparable offence of fraud. The prosecuting authorities
are understood to have effective ways of preventing such abuse.
Civil proceedings, which seem much more likely in asserting private
interests, could be equally damaging and are not restrained by
the AG's consent. No such consent has ever been required in respect
of the prosecution of common law offences. "Politicisation"
of prosecutions would be retrograde.
3.16 The Law Commission recommended (para
7.26 of their Report) that the consent of a law officer should
not apply. Article 5 of the OECD Convention requires that the
investigation of the bribery of a foreign public official should
not be influenced by considerations of national economic interest,
the potential effect upon relations with another state or the
identity of the natural or legal persons involved. The AG's consent
requirement has been commented upon adversely by the OECD Working
Group on Bribery; and, in their most recent report, [1]it
remains an issue for follow-up. However strictly the AG may exercise
powers in accordance with the Code for Crown Prosecutors, there
will remain a perception that, as a member of the Government,
he could be influenced by considerations of the type excluded
by Article 5 of the Convention.
Appendix 2
EXTRACT FROM
SUBMISSION OF
TI(UK) TO THE
OECD WORKING GROUP
ON BRIBERY
Phase 2 Evaluation of the UK's Implementation
of the OECD Anti-bribery Convention
Law Officers' Consent
15. TI(UK) considers that there should be
no requirement for the Attorney General's (AG) consent to prosecution
of bribery offences. It is claimed that in exercising this power,
the AG applies the criteria established by the Code for Crown
Prosecutors. It is therefore a duplication of the prosecutor's
function that will have already resulted in a decision to prosecute.
It is further claimed that the AG's consent is required to counter
the risk that the right of private prosecutions will be abused
and the institution of proceedings will cause the defendant irreparable
harm. Evidence of such risk is lacking. There is no corresponding
requirement for the comparable offence of fraud and it does not
even apply to common law offences. The prosecuting authorities
have effective ways of preventing such abuse by assuming responsibility
for the prosecution and then not proceeding on grounds of insufficiency
of evidence or other grounds under the Code.
16. In examining public interest grounds,
most of the factors that a prosecutor considers do not really
apply to foreign bribery. Considerations about the "victim"
are particularly difficult to apply because there is frequently
no obvious victim. The bidders for business who lose because the
winner bribed are certainly "victims", but frequently
in countries where corruption is widespread, the true victims
are the poor who do not get access to the schools, hospitals and
services to which they are entitled because corruption damages
the economy or more directly because funds for infrastructure
are misapplied.
17. Worryingly, one of the public interest
factors that weighs against prosecution is that details may be
made public that could harm international relations, which brings
the question into consideration under Article 5 of the Convention,
which requires that the investigation of the bribery of a foreign
public official should not be influenced by considerations of
national economic interest, the potential effect upon relations
with another state or the identity of the natural or legal persons
involved. The AG's consent requirement remains an issue for the
OECD Working Group. However strictly the AG may exercise powers
in accordance with the Code for Crown Prosecutors, there will
remain a perception that, as a member of the Government, he could
be influenced by considerations of the type excluded by Article
5 of the Convention. The Law Commission recommended (para 7.26
of their Report) that the consent of a law officer should not
apply. The JPC recommended that the consent of the Director of
Public Prosecutions (DPP) should be substituted for that of the
AG. This would be an improvement on the present situation in terms
of perception, but would still remain as an unnecessary requirement.
Appendix 3
STATEMEMNT OF
SECRETARY GENERAL
OF OECD
18 January 2007
OECD Secretary-General stresses governments' role
in anti-corruption drive
18 January 2007—OECD Secretary-General
Angel Gurria stressed the important role of governments in preserving
the credibility and integrity of the OECD Anti-Bribery Convention,
at the session of the OECD Working Group on Bribery held in Paris
on 16-18 January 2007.
The credibility of the Convention depends on
its implementation and enforcement by the countries that are signatories
to it, Mr Gurria made clear. "The political will of our members,
collectively and individually, is of very critical importance...
I am gratified that the OECD provides a forum where we can have
a full and frank exchange of views on these issues," he told
delegates.
In the context of its regular exchange of views
on recent developments, the Working Group engaged in discussions
regarding the recent discontinuation by the United Kingdom of
a major foreign bribery investigation concerning BAE Systems plc
and the Al Yamamah defence contract with the government of Saudi
Arabia. The Working Group appreciates the efforts of the United
Kingdom authorities to explain the decision to other members of
the Convention.
The Working Group has serious concerns as to
whether the decision was consistent with the OECD Anti-Bribery
Convention and will discuss further the issue in March 2007, in
the context of the United Kingdom written report on its implementation
of recommendations set out in the 2005 Phase 2 examination report
on its enforcement and application in practice of the OECD Convention.
The Working Group will then consider appropriate action.
In the context of the discussion to be held
in March, the Working Group would make reference to two particular
recommendations in its 2005 report on the application of the Convention
by the United Kingdom. These recommendations concern "the
performance of the SFO and other relevant agencies with regard
to foreign bribery allegations... including in particular with
regard to decisions not to open or to discontinue an investigation"
(paragraph 254 a.) and amendments that would "ensure that
the investigation and prosecution of bribery of foreign public
officials shall not be influenced by considerations of national
economic interest, the potential effect upon relations with another
state or the identity of the natural or legal persons involved"
(paragraph 255 a.) as prescribed by Article 5 of the Convention.
The entire report is available at www.oecd.org/corruption.
Appendix 4
Transparency International (TI) has been at
the forefront of the anti-corruption movement since it was formed
in 1993. TI is a not-for-profit, independent, non-governmental
organisation, dedicated to increasing government accountability
and curbing both international and national corruption. It seeks
to work in a non-confrontational way with governments, companies,
development agencies, NGOs and international organisations to
build coalitions to combat corruption.
TI's international secretariat is based in Berlin
and there are about 90 national chapters around the world. (www.transparency.org)
TI(UK) is the national chapter for the UK and
was among the first to be formed, also in 1993. (www.transparency.org.uk)
1 Phase I Bis Report. Back
| 
