Evidence submitted by the Corner House
1. The Corner House is a non-governmental
organization that focuses on environment, development and human
rights. It has a track record on policy research and analysis
on overseas corruption.
2. The purpose of this submission is to
provide background information on the international commitments
of the United Kingdom (UK) on overseas corruption as they relate
to the Committee's Inquiry into the constitutional position of
the Attorney General. In particular, the submission is concerned
with paragraph 3 of the Committee's inquiry, on whether the Attorney
General's role as superintending Minister for legal services provided
in Government conflicts with his duties as a member of the Government.
3. The Attorney General in his role as superintending
Minister for legal services is responsible for the work of the
Serious Fraud Office, which is currently the body with primary
responsibility for investigating and prosecuting overseas corruption.
Under current corruption legislation, the Attorney General is
also responsible for providing consent for corruption prosecutions
to proceed.
4. Repeated international assessments of
the UK's ability to fight corruption and of its implementation
of international anti-corruption conventions have questioned the
appropriateness of the Attorney General's role in providing consent
for corruption prosecutions given the risk of political influence
arising from his position as a member of the Government.
5. At national level a Parliamentary inquiry
into the adequacy of the UK's Draft Corruption Bill similarly
identified a conflict of interest in the requirement for the Attorney
General's consent for corruption offences, recommending that it
should be replaced by the consent of the Director of Public Prosecutions
(DPP) or a nominated deputy. This recommendation has been accepted
by the Government.
THE UNITED
KINGDOM'S
INTERNATIONAL OBLIGATIONS
6. The United Kingdom is signatory to three
major international anti-corruption conventions:
— OECD Convention on Combating
Corruption of Foreign Public Officials in International Business
Transactions (OECD Anti-bribery Convention) and its Revised Recommendation
of the Council on Combating Bribery in International Business
Transactions (1997 Revised Recommendation) (1997); [2]
— Council of Europe Criminal Law
Convention on Corruption (1999);
— United Nations Convention against
Corruption (UNCAC) (2003).
7. The Council of Europe Criminal Law Convention
on Corruption and UNCAC both require parties to provide full independence
of specialized authorities investigating and prosecuting corruption
in order to ensure that no undue pressure or influence can be
brought to bear on those authorities:
— Article 20 of the Council of
Europe Criminal Law Convention on Corruption provides that each
party shall ensure there are specialised authorities to fight
corruption and that these:
"shall have the necessary independence
in accordance with the fundamental principles of the legal system
of the Party, in order for them to be able to carry out their
functions effectively and free from any undue pressure";
— Article 36 of UNCAC similarly
requires that specialized authorities:
"shall be granted the necessary independence,
in accordance with the fundamental principles of the legal system
of the State Party, to be able to carry out their functions effectively
and without undue influence".
8. Article 5 of the OECD Anti-bribery Convention
requires that investigation and prosecution of overseas corruption
offences:
"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".
9. Paragraph 6 of the Annex to the 1997
Revised Recommendation identifies the importance of prosecutorial
independence and the need for decisions to be made on the basis
of "professional motives":
"In view of the seriousness of the offence
of bribery of foreign public officials, public prosecutors should
exercise their discretion independently, based on professional
motives. They should not be influenced by considerations of national
economic interest, fostering good political relations or the identity
of the victim." [3]
Paragraph 6 also states that the:
"Complaints of victims should be seriously
investigated by the competent authorities".
10. The commentaries to the OECD Anti-bribery
Convention[4]
further explain that Article 5 is primarily concerned with securing
prosecutorial independence:
"in order to protect the independence
of prosecution, such discretion is to be exercised on the basis
of professional motives and is not to be subject to improper influence
by concerns of a political nature."
The commentaries also indicate that the Annex
to the 1997 Revised Recommendation serves to strengthen Article
5 by providing that:
"...complaints of bribery of foreign
bribery officials should be seriously investigated."
INTERNATIONAL ASSESSMENTS
OF THE
UNITED KINGDOM'S
COMPLIANCE WITH
INTERNATIONAL TREATIES5[5]
11. The OECD Working Group on Bribery, the
body responsible for monitoring the implementation of the Convention,
has made three evaluations of the UK's compliance with the OECD
Convention. Each of these evaluations has expressed concern over
whether the UK is fully compliant with Article 5 of the OECD Convention,
given the potential conflicts of the Attorney General's dual role.
12. The review team of the Council of Europe's
Group of States against Corruption (GRECO) similarly questioned
the appropriateness of the requirement for the Attorney General's
consent in its first evaluation of the UKs implementation of the
Council of Europe Criminal Law Convention on Corruption.
13. In December 1999, the Working Group
on Bribery, in evaluating whether UK law was compliant with the
OECD Convention, stated that it
"expects that within the exercise of
prosecutorial discretion, the UK fully respect Article 5 of the
Convention. In addition, the Working Group recommends that the
UK reconsider the requirement that the prosecution of the bribery
of foreign public officials not be instituted without the permission
of the Attorney General or Solicitor General."
14. In March 2003, in a second evaluation
of whether UK law was compliant with the Convention, the Working
Group noted that the UK had retained the requirement for a Law
Officer's consent in the new 2001 Act on the basis that:
"the Law Officers do not exercise their
prosecution functions as members of the Government but act as
impartial guardians of the public interest. When exercising their
law enforcement functions the Law Officers act wholly independently
of the executive and in a quasi-judicial manner."
However the Working Group again stated that
it:
"encourages the UK to ensure that Article
5 is fully respected, both in the exercise by prosecutors of discretion
based on public interest, and in the exercise by a Law Officer
of the right to grant or withhold consent to prosecute."
The Working Group went on to say that in further
evaluation of the UK, it would examine:
"whether the Law Officer's consent requirement
may be an obstacle to effective implementation of the Convention
and whether the UK is in a position, within the exercise of prosecutorial
discretion, to fully respect Article 5 of the Convention."
15. In March 2005, in its report of the
evaluation of the adequacy of the UKs implementation of the OECD
Convention, the Working Group on Bribery paid considerable attention
to whether the UK was able to be compliant with Article 5 of the
Convention given the Attorney General's role. The Report notes
the Attorney General's confirmation that:
"none of the considerations prohibited
by Article 5 would be taken into account as public interest factors
not to prosecute... that public interest factors in favour of
prosecution of foreign bribery would include its nature as a serious
offence and as an offence involving a breach of the public trust."
However the OECD Working Group nonetheless once
again recommends that the UK:
"...consider the appropriateness of Law
Officers consent for cases of foreign bribery..."
16. In its July 2001 report of UK implementation
of the Council of Europe Criminal Law Convention on Corruption,
GRECO noted that the UK intended to retain the requirement for
the Attorney General's consent in its new legislation:
"...as a protection against frivolous
or malicious prosecutions".
However it went on to state that:
"...there does not seem to be any evident
justification why decisions to prosecute made by professionals
pursuant to established standards should be reviewed by the Law
Officers (which might be interpreted as a form of political control)
in corruption cases. On the contrary, the existing arrangement
carries the risk of undermining public confidence in the functioning
of the system."
GRECO recommended that the UK authorities:
"...ensure that there are safeguards
to prevent any undue exercise of the Attorney General's power
to refuse consent to prosecutions under the Prevention of Corruption
Acts."
NATIONAL ASSESSMENTS
OF THE
UNITED KINGDOM'S
COMPLIANCE WITH
INTERNATIONAL TREATIES
17. On the 24 March 2003 the Joint Committee
on the Draft Corruption Bill was appointed by the House of Commons
and House of Lords to examine the Draft Corruption Bill, which
had been published for pre-legislative scrutiny.
18. The Joint Committee identified the Attorney
General's consent to prosecution at the outset as one of the issues
to be addressed in its Inquiry.
19. In relation to questions regarding the
role of the Attorney General and compliance with the OECD Anti-bribery
Convention, Professor Mark Pieth, the Chair of the OECD Working
Group on Bribery, in his oral evidence stated that:
"The Crown Prosecution Service knows
why they go ahead and they have their rules. Why would they need
an additional political officer to tell them when to stop a case?
What creeps into the discourse is a very uneasy feeling that there
is a possibility which is dangerous and we would have difficulties
saying, `This meets the requirements of Article 5 of the Convention.'
We would suggest trying hard to abolish the consent."
[6]
Professor Pieth further questioned the need
for consent:
"Why can the prosecutors in the CPS not
take the decision? Why do you need somebody centralised far away
from the actual case?" [7]
Professor Pieth further explained the purpose
of the Article 5 of the Convention:
"What we are trying to rule out is that
somebody says, `This is a good friend of ours, Mr Suharto you
cannot do that to us', that will expose him, or the other situation
where they say, `We are gaining a lot of jobs out of this contract,
we cannot expose this contract, so we will stay the investigation.'
... I believe if the CPS took the decision it would be perfectly
in line with the Convention." [8]
20. In its Report, published on the 31 July
2003, the Joint Committee on the Draft Corruption Bill stated
that:
"We have been told that MPs and peers,
among other public figures, are vulnerable to frivolous or vexatious
private prosecutions for corruption... We therefore accept the
need for some filter before prosecutions are launched."
The Report continues:
"...involving a member of the Government
in the decision to prosecute may be counter to our international
obligations. Without doubting the independence of the Attorney
General and his predecessors, we accept that the appearance of
ministerial involvement in the prosecution decision would best
be avoided."
The Report recommended that the requirement
for the consent by the Attorney General be removed and that:
"...Clause 17 be replaced by a requirement
for the consent to be given by Director of Public Prosecutions
or one nominated deputy."
21. In its reply to the Report of the Joint
Committee on the Draft Corruption Bill of December 2003, the Government
indicated that it would replace the existing statutory requirement
for the Attorney General's consent with a requirement for the
consent of the Director of Public Prosecutions (DPP) or a nominated
deputy:
"We are pleased to concur with the Joint
Committee and are exploring the options as to how to make necessary
provision in the Bill." [9]
22. In its Consultation Paper on the Reform
of the Prevention of Corruption Acts and SFO Powers in Cases of
Bribery of Foreign Officials of 8th December 2005, the UK Government
states its intention that the Director of the SFO should also
be empowered to give consents:
"The Government has agreed some modifications
to the published draft Bill, which flow from the recommendations
of the Joint Committee which gave the Bill its pre-legislative
scrutiny:... Replacing the requirement for the Attorney General's
consent (in clause 17) with a requirement for consent to be given
by the DPP or a nominated deputy. We have since decided to add
to that a power for consent to be given by the Director of the
SFO, in view of the SFO's lead role in foreign bribery cases."
[10]
23. An alternative Corruption Bill, introduced
in May 2006, sponsored by a cross-party group of MPs and prepared
by Transparency International-UK (TI-UK) goes further and removes
the requirement for consent altogether.
24. The Corner House considers that these
domestic and international examinations of the foreign bribery
offence reveal a strong consensus that the requirement for the
Attorney General's consent for corruption prosecutions opens the
door for accusations of political interference and fuels public
mistrust.
25. The Corner House also strongly believes
that recent events surrounding the termination of the SFO's investigation
into BAE Systems Plc and the Al Yamamah military contract with
the Government of Saudi Arabia, provide further evidence of the
conflict of interest that exists between the Attorney General's
political and "quasi-judicial"[11]
roles, underlining the need for urgent reform.
February 2007
2 1997 Revised Recommendation of the Council on Combating
Bribery in International Business Transactions, available at http://www.oecd.org/document/32/0,2340,en_2649_34855_2048160_1_1_1_1,00.html Back
3
"Revised Recommendation of the Council on Combating Bribery
in International Business Transactions ANNEX, Agreed Common Elements
of Criminal Legislation and Related Action", 23 May 1997-C(97)123/FINAL
available at, http://webdomino1.oecd.org/horizontal/oecdacts.nsf/Display/260A29878153E4CFC125708800580BEA?OpenDocument Back
4
"Commentaries on the OECD Convention", http://www.oecd.org/document/1/0,2340,en_2649_34859_2048129
_1_1_1_1,00.html Back
5
To date no country has been monitored against its implementation
of UNCAC. Back
6
http://www.parliament.the-stationery-office.co.uk/pa/jt200203/jtcorr/157/3060203.htm Back
7
http://www.parliament.the-stationery-office.co.uk/pa/jt200203/jtcorr/157/3060207.htm Back
8
http://www.parliament.the-stationery-office.co.uk/pa/jt200203/jtcorr/157/3060206.htm Back
9
http://www.archive2.official-documents.co.uk/document/cm60/6086/6086.pdf Back
10
http://www.homeoffice.gov.uk/documents/2005-cons-bribery?view=Binary Back
11
http://www.lawcom.gov.uk/docs/lc255(1).pdf Back
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