5 Clause 17:
Attorney General's consent
136. Clause 17 of the draft Bill provides that prosecutions
for the new offences can only proceed with the consent of the
Attorney General. The original Law Commission report in 1998 did
not include such a requirement. The Joint Committee on Parliamentary
Privilege, when agreeing to the waiver of freedom of speech in
Parliament to secure the conviction of MPs and peers, did recommend
a requirement of Attorney General's consent. Generally, however,
the trend has been to reduce the number of offences for which
the Attorney's consent is required.
137. We have been told that MPs and peers, among
other public figures, are vulnerable to frivolous or vexatious
private prosecutions for corruption. These could, if raised during
an election or other sensitive time, distort the political process.
We therefore accept the need for some filter before prosecutions
138. Where some consent to prosecution is required
for other offences, the decision-maker is usually the Director
of Public Prosecutions. This responsibility is normally exercised
through delegated powers by Chief Crown Prosecutors. We understand
that there is little practical advantage in requiring the consent
of the Attorney as opposed to the DPP. Furthermore, 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.
139. Ideally the consent to prosecute would be vested
in the Director of Public Prosecutions and exercised either by
him personally or in his absence by one nominated deputy. In cases
involving MPs it would be open to the DPP to consult the Parliamentary
Commissioner for Standards on the interpretation of the Code of
Conduct. We recommend that Clause 17 be replaced by
a requirement for the consent to be given by Director of Public
Prosecutions or one nominated deputy.
156 Law Commission Report no. 255 (1998) Back
Ev126 DCB1 (Corner House) para 4.2, Ev 143 DCB 12 (GRECO) Back