9 THE ATTORNEY GENERAL
Powers of consent
165. Clause 10 would remove the requirement to obtain
the consent of the Attorney General before commencing criminal
proceedings for a statutory bribery offence. In its place there
would be a requirement to obtain the consent of the Director of
the Crown Prosecution Service, the Serious Fraud Office, or Revenue
and Customs Prosecutions. This reflects requests made by the OECD's
Working Group and the Council of Europe's monitoring body, GRECO,
which view the Attorney General as being too close to the political
heart of Government to provide the independence offered by the
Directors.[272] The
proposal is strongly endorsed by The Corner House and Transparency
International UK, among others.[273]
166. The Government's decision to include clause
10 in the draft Bill represents a small piece of a much wider
debate on the reform of the Office of the Attorney General. In
particular, the Attorney published a consultation paper on the
future of her role in July 2007 following the launch of the Government's
Green Paper: The Governance of Britain.[274]
It raised complex constitutional questions concerning her core
functions as:
- Legal advisor to the Government;
- Minister with superintendence for the prosecuting
authorities and shared responsibility for criminal justice policy;
and
- Guardian of the public interest.
167. Detailed legislative proposals were subsequently
published as part of the draft Constitutional Renewal Bill in
March 2008. Among them were proposals to transfer consent from
the Attorney General to the Directors in relation to a wide range
of offences, including the current statutory bribery offences.[275]
Those proposals set out the same aim as clause 10 of the draft
Bill but in a more comprehensive way. In particular, the 2008
draft Bill included proposals to reform of one of the Attorney
General's most significant powers, the non-statutory power of
direction that enables the Attorney to intervene in any prosecutorial
decision taken by a prosecuting authority.
168. This power strongly divides opinion over the
correct balance to be achieved between prosecutorial independence
and parliamentary accountability. Those who favour its restriction
or removal highlight the fact that it has not been used in recent
years and that it is not universally acknowledged to exist. The
power is, however, viewed by past Attorneys General, among others,
as a "nuclear option" of last resort where a fundamental
difference of opinion might have arisen on a matter of great importance.
The draft Constitutional Renewal Bill proposed formalising the
power of direction by reducing it to statute, but also narrowing
it by restricting directions to any case where the Attorney General
considered its use to be necessary to safeguard national security.
169. Views on the proposals in the draft Constitutional
Renewal Bill were mixed. The House of Commons Justice Committee
broadly welcomed the proposed amendments to the powers of consent
and direction, while calling for more radical reform of the Attorney
General's advisory role.[276]
The Joint Committee on the draft Constitutional Renewal Bill was
also content with the transfer of consent (akin to clause 10 of
the draft Bribery Bill), but only in circumstances where the power
of direction remained untouched and unrestricted:
We sympathise with the Government's concern to
ensure operational independence for the prosecutorial authorities,
but we are not convinced that removing the Attorney General's
power to give a prosecution direction is an appropriate route
for achieving this. We were impressed by the strength of the evidence
we received that the "nuclear option" of being able
to stop a prosecution must be retained, and that the most appropriate
person to exercise it is the Attorney General, as she is directly
accountable for its exercise to Parliament. Removing this power
would mean that the Attorney would have responsibility without
power.[277]
170. We asked the Attorney General whether clause
10 of the draft Bill risked undermining parliamentary accountability
by leaving her responsible for prosecutorial decisions but without
the power to intervene. She did not agree, given her general powers
of superintendence and her ongoing preparation of a future protocol
that will formalise the Attorney General's relationship with the
prosecutorial Directors.[278]
We further questioned whether powers of superintendence would
still suffice if the power of direction was lost or restricted.
The Attorney General acknowledged the strength of opinion on both
sides over this issue. She stated her view that powers of direction
were no longer necessary in view of the proposed protocol, before
adding:
It is important to remember that the draft Bribery
Bill contains no provision in this regard. Should the draft Bill
in its current form become law, the consent function in relation
to bribery cases will pass from me to the prosecuting authorities,
but my power of direction will remain unchanged. It appears to
me that the power of direction and the wider constitutional position
of the Attorney General should be addressed in the context of
the draft Constitutional Renewal Bill, rather than this Bill.[279]
171. The Attorney General's powers of consent
and direction raise complex constitutional issues that lie at
the heart of ensuring parliamentary accountability for the criminal
justice system. We agree with the Government that the power of
direction should remain in place without being reformed by the
draft Bribery Bill. Since this power will remain in place, we
are satisfied that the power of consent should be transferred
from the Attorney General to the Directors of the prosecuting
authorities (clause 10). Any broader reform of the Attorney General's
Office, including her power of direction, must await comprehensive
proposals being pursued in the future.
Powers of delegation
172. Without reaching a firm conclusion on the draft
Bill's proposal to transfer consent, we note that there is potential
under clause 10 for any prosecutorial decision to be delegated
from the Director of the prosecuting agency to a lower level employee
or prosecutor. These decisions would currently be taken by the
Attorney General or Solicitor General personally. The decisions
are few in number and have the potential to raise issues of considerable
complexity and sensitivity.
173. The Confederation of British Industry called
for the draft Bill to include a restriction preventing delegation
to anyone other than a "senior official": "we believe
that delegation of consent to a specific person, persons of a
specified description or related to specified circumstances in
sub-clause 3 should only be made to someone of sufficient seniority".[280]
The Attorney General stated that prosecutors require a degree
of flexibility, but also noted:
These issues are very important, so one would
expect that, if the matter were to be taken by a Director or the
DPP or otherwise, there would be an appropriate degree of seniority
in taking that decision.[281]
In her view, the best way to restrict the inappropriate
delegation of powers of consent would be through the forthcoming
prosecutors' protocol. The Attorney General stated that the protocol
could include an express limit on delegation to "nominated
and identified individuals" only.[282]
174. Any transfer of consent from the Attorney
General to the Directors of the prosecuting authorities should
limit the Directors' power to delegate their role in relation
to bribery cases to senior postholders who are nominated and identified
under the protocol for prosecutors.
175. On a separate note, we draw attention to section
53 of the Serious Crime Act 2007 which requires the Attorney General's
consent prior to commencing proceedings in certain circumstances
where there is an international element to the offence. The transfer
of consent to the Directors under clause 10 does not extend to
amending the 2007 Act, which would lead to an inconsistency under
the draft Bill. The Director of Public Prosecutions described
it as an "anomaly" which the Secretary of State for
Justice stated would be addressed either under the draft Bill
or under the forthcoming Constitutional Renewal Bill.
176. The transfer of consent to the Directors
under clause 10 of the draft Bill does not extend to amending
section 53 of the Serious Crime Act 2007, leading to an inconsistency
in the draft Bill. We recommend that the Government address this
anomaly in the forthcoming Bribery Bill.
272 The Group of States Against Corruption (GRECO);
BB38; OECD Phase 2 bis report, above, paras 119-129 Back
273
BB55; Q539 and Q541 Back
274
Ministry of Justice, The Governance of Britain, Cm 7170, July
2007; The Governance of Britain - A Consultation on the Role of
the Attorney General (Cm 7192), July 2007 Back
275
Constitutional Renewal Bill, Cm 7342-11, clause 7 Back
276
House of Commons Justice Select Committee, Draft Constitutional
Renewal Bill, (provisions relating to the Attorney General), Session
2007-08, HC 698, paras 41 to 52 Back
277
Joint Committee on the draft Constitutional Renewal Bill, HC 551/HL
166, July 2008, para 114 Back
278
Qq 626-629 (Baroness Scotland of Asthal) Back
279
BB60. At the time the Committee conducted its Inquiry it was
expected that the Government would publish detailed proposals
for reforming the Office of the Attorney General in the Constitutional
Renewal Bill. Following the conclusion of our Inquiry, the Government
published the Constitutional Reform and Governance Bill which
did not contain any such proposals. Back
280
BB07, para 31 Back
281
Q626 (Baroness Scotland of Asthal) Back
282
Q636 (Baroness Scotland of Asthal) Back
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