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Constitutional Renewal Bill [HL]


Constitutional Renewal Bill [HL]
Part 1 — Demonstrations in the vicinity of Parliament

1

 

A

Bill

To

Repeal sections 132 to 138 of the Serious Organised Crime and Police Act 2005;

to make provision relating to the Attorney General; to make provision relating

to the ratification of treaties and to participation in armed conflict by the

United Kingdom; to make provision relating to the civil service; to make

provision relating to parliamentary general elections; to make provision

relating to the conduct of members of Parliament; and for connected purposes. 

Be it enacted by the Queen’s most Excellent Majesty, by and with the advice and

consent of the Lords Spiritual and Temporal, and Commons, in this present

Parliament assembled, and by the authority of the same, as follows:—

Part 1

Demonstrations in the vicinity of Parliament

1       

Repeal of sections 132 to 138 of Serious Organised Crime and Police Act 2005

(1)   

Omit sections 132 to 138 of the Serious Organised Crime and Police Act 2005

(c. 15) (which regulate demonstrations in the vicinity of Parliament).

5

(2)   

In the Table in section 175(3) of that Act (transitional provision relating to

offences), omit the entries relating to section 136.

(3)   

In paragraph 1(1) of Schedule 2 to the Noise and Statutory Nuisance Act 1993

(c. 40) (which is about consents for the operation of loudspeakers), omit “or of

section 137(1) of the Serious Organised Crime and Police Act 2005”.

10

(4)   

Omit paragraph 64 of Schedule 6 to the Serious Crime Act 2007 (c. 27).

 

HL Bill 34                                                                                              

54/4

 
 

Constitutional Renewal Bill [HL]
Part 2 — The Attorney General

2

 

Part 2

The Attorney General

Independent role for Attorney General and Solicitor General

2       

Ending of political role

(1)   

Any holder of the office of Attorney General or Solicitor General is disqualified

5

for—

(a)   

membership of the House of Commons, and

(b)   

membership of the House of Lords.

(2)   

Amend the House of Commons Disqualification Act 1975 (c. 24) as follows—

(a)   

in Part III of Schedule 1 (disqualifying offices), insert at the appropriate

10

place—

“Attorney General”

“Solicitor General”;

(b)   

in Schedule 2 (which lists the Ministerial offices subject to the

maximum specified in section 2 of that Act), omit the following

15

entries—

“Attorney General”

“Solicitor General”.

(3)   

In Part III of Schedule 1 to the Ministerial and other Salaries Act 1975 (c. 27)

(salaries of the Law Officers), omit the following entries—

20

“Attorney General”

“Solicitor General”.

3       

Duty to act independently and in the public interest

The Attorney General must have adequate arrangements for ensuring that the

functions of the office of Attorney General—

25

(a)   

are discharged independently (in particular, of any Minister of the

Crown or government department), and

(b)   

are discharged in the public interest and in accordance with the existing

constitutional principle of the rule of law.

4       

Publication of advice

30

(1)   

This section applies where—

(a)   

the Attorney General has given legal advice to a Minister of the Crown

in relation to any matter, and

(b)   

in tabling a motion to consider any question on that matter for

resolution by one or both Houses of Parliament, the Minister has had

35

regard to some or all of that legal advice.

(2)   

As soon as is practicable after the motion is tabled, the Minister of the Crown

must publish the Attorney General’s legal advice in such manner as the

Minister considers appropriate.

(3)   

Nothing in subsection (2) requires the publication of any information that

40

relates to any communications between Ministers of the Crown that were

 
 

Constitutional Renewal Bill [HL]
Part 2 — The Attorney General

3

 

made for, or in connection with, the obtaining of legal advice from the Attorney

General about the matter in question.

Ground rules of Attorney’s superintendence of Directors

5       

Ban on directions in individual cases

(1)   

The Attorney General’s function of superintendence of the Directors does not

5

include power to give direction in relation to an individual case.

(2)   

Subsection (1) is subject to section 15 (duty to intervene to safeguard national

security).

(3)   

In this section and section 6 “the Directors” means—

(a)   

the Director of Public Prosecutions (see section 7),

10

(b)   

the Director of the Serious Fraud Office (see section 8), and

(c)   

the Director of Revenue and Customs Prosecutions (see section 9).

(4)   

Nothing in subsection (1) affects the operation of any enactment or provision

of subordinate legislation under which the Attorney General has a prosecution

consent function.

15

(5)   

In this section—

“prosecution consent function” has the meaning given in section 10(1);

“subordinate legislation” has the same meaning as in the Interpretation

Act 1978 (c. 30).

6       

Protocol for running of prosecution services

20

(1)   

The Attorney General—

(a)   

must in consultation with the Directors issue a statement (a “protocol”)

of how the Attorney General and the Directors are to exercise their

functions in relation to each other, and

(b)   

must from time to time review the protocol and may in consultation

25

with the Directors modify or replace it.

(2)   

The protocol may in particular include provision as to—

(a)   

the general responsibilities of the Attorney General and each of the

Directors;

(b)   

the arrangements for ensuring that the Attorney General is properly

30

advised on matters relating to the strategic direction of the prosecution

services and on matters affecting more than one prosecution service;

(c)   

the circumstances in which the Attorney General is to be consulted or

provided with information;

(d)   

the objectives of the prosecution services;

35

(e)   

the way in which the objectives are set and the means by which their

achievement or otherwise is reviewed;

(f)   

the way in which matters relating to the accountability of the Attorney

General to Parliament for prosecution services are to be handled;

(g)   

the role of the Attorney General and the Directors in relation to dealing

40

with representatives of the press and other media;

(h)   

procedures for dealing with complaints relating to the prosecution

services.

 
 

Constitutional Renewal Bill [HL]
Part 2 — The Attorney General

4

 

(3)   

The protocol and any modification of it may not be issued unless it has been

laid in draft before Parliament and approved by a resolution of each House.

(4)   

The Attorney General and the Directors must have regard to any relevant

provision of the protocol when carrying out their functions.

(5)   

“The prosecution services” means the Crown Prosecution Service, the Serious

5

Fraud Office and the Revenue and Customs Prosecutions Office.

New provisions about tenure of office of the Directors

7       

Director of Public Prosecutions

(1)   

The Director of Public Prosecutions—

(a)   

is appointed by the Attorney General, and

10

(b)   

subject to what follows, holds office in accordance with the terms of the

appointment.

(2)   

The Director must have a 10 year general qualification, within the meaning of

section 71 of the Courts and Legal Services Act 1990 (c. 41).

(3)   

Service as the Director is service in the civil service of the State.

15

(4)   

There is to be paid to the Director such remuneration as the Attorney General

may, with the approval of the Minister for the Civil Service, determine.

(5)   

Any appointment under subsection (1) must be for a term of 5 years and may

be renewed on expiry.

(6)   

The Director may at any time resign by notice in writing to the Attorney

20

General.

(7)   

The Attorney General may remove the Director from office only if satisfied that

the Director in unable, unfit or unwilling to carry out the functions of the office.

(8)   

The factors which the Attorney General may take into account in determining

whether the Director is unfit to carry out the functions of the office include, in

25

particular—

(a)   

failure by the Director to comply with section 6(4) (duty to have regard

to relevant provisions of the protocol), and

(b)   

failure by the Director to perform the functions of the office efficiently

and effectively.

30

8       

Director of the Serious Fraud Office

(1)   

The Director of the Serious Fraud Office—

(a)   

is appointed by the Attorney General, and

(b)   

subject to what follows, holds office in accordance with the terms of the

appointment.

35

(2)   

Service as the Director is service in the civil service of the State.

(3)   

There is to be paid to the Director such remuneration as the Attorney General

may, with the approval of the Minister for the Civil Service, determine.

(4)   

Any appointment under subsection (1) must be for a term of 5 years and may

be renewed on expiry.

40

 
 

Constitutional Renewal Bill [HL]
Part 2 — The Attorney General

5

 

(5)   

The Director may at any time resign by notice in writing to the Attorney

General.

(6)   

The Attorney General may remove the Director from office only if satisfied that

the Director is unable, unfit or unwilling to carry out the functions of the office.

(7)   

The factors which the Attorney General may take into account in determining

5

whether the Director is unfit to carry out the functions of the office include, in

particular—

(a)   

failure by the Director to comply with section 6(4) (duty to have regard

to relevant provisions of the protocol), and

(b)   

failure by the Director to perform the functions of the office efficiently

10

and effectively.

9       

Director of Revenue and Customs Prosecutions

(1)   

The Director of Revenue and Customs Prosecutions—

(a)   

is appointed by the Attorney General, and

(b)   

subject to what follows, holds office in accordance with the terms of the

15

appointment.

(2)   

The Director must have a 10 year general qualification, within the meaning of

section 71 of the Courts and Legal Services Act 1990 (c. 41).

(3)   

Service as the Director is service in the civil service of the State.

(4)   

There is to be paid to the Director such remuneration as the Attorney General

20

may, with the approval of the Minister for the Civil Service, determine.

(5)   

Any appointment under subsection (1) must be for a term of 5 years and may

be renewed on expiry.

(6)   

The Director may at any time resign by notice in writing to the Attorney

General.

25

(7)   

The Attorney General may remove the Director from office only if satisfied that

the Director is unable, unfit or unwilling to carry out the functions of the office.

(8)   

The factors which the Attorney General may take into account in determining

whether the Director is unfit to carry out the functions of the office include, in

particular—

30

(a)   

failure by the Director to comply with section 6(4) (duty to have regard

to relevant provisions of the protocol), and

(b)   

failure by the Director to perform the functions of the office efficiently

and effectively.

Attenuation of Attorney’s prosecution consent functions

35

10      

Meaning of “prosecution consent function” and “the Directors”

(1)   

For the purposes of this Part, the Attorney General has a prosecution consent

function under an enactment if under that enactment—

(a)   

proceedings for an offence may not be instituted except by, or with the

consent of, the Attorney General (or by, or with the consent of, the

40

Attorney General or one or more other persons), or

 
 

Constitutional Renewal Bill [HL]
Part 2 — The Attorney General

6

 

(b)   

the Attorney General (or the Attorney General or one or more other

persons) has a function of giving a consent to the taking of any other

step in connection with proceedings for an offence.

(2)   

In subsection (1)(a) and (b), “offence” includes a service offence as defined by

section 50 of the Armed Forces Act 2006 (c. 52).

5

(3)   

In sections 11 and 12 “the Directors” has the same meaning as in sections 5 and

6, except that it also includes the Director of Service Prosecutions.

11      

Power to end other prosecution functions of the Attorney

(1)   

The Attorney General may by order amend any existing enactment or existing

provision of subordinate legislation under which the Attorney General has a

10

prosecution consent function.

(2)   

An order under this section may, in particular, make provision under which

the Attorney General’s prosecution consent function—

(a)   

becomes the function of one of the Directors or, in the absence of that

Director, a person authorised by that Director;

15

(b)   

becomes the function of one of the Directors but is a function to which

the relevant delegation provision applies;

(c)   

is removed.

(3)   

An order under this section may make consequential, incidental,

supplementary, transitional or saving provision.

20

(4)   

The power to make an order under this section is exercisable by statutory

instrument.

(5)   

No order may be made under this section unless it has been laid in draft before

Parliament and approved by a resolution of each House.

12      

Effect of provisions conferring functions on the Director or authorised person

25

(1)   

This section applies in relation to any enactment or provision or subordinate

legislation under which a function is that of one of the Directors or, in the

absence of that Director, a person authorised by the Director.

(2)   

The relevant delegation provision does not apply to the function.

(3)   

The Director’s authorisation—

30

(a)   

may relate to a specified person or to persons of a specified description,

and

(b)   

may be general or relate to a specified function or specified

circumstances.

13      

Sections 11 and 12: minor definitions

35

(1)   

In sections 11(2)(b) and 12(2) “the relevant delegation provision” means—

(a)   

in relation to the Director of Public Prosecutions, section 1(7) of the

Prosecution of Offences Act 1985 (c. 23);

(b)   

in relation to the Director of the Serious Fraud Office, section 1(8A) of

the Criminal Justice Act 1987 (c. 38);

40

 
 

Constitutional Renewal Bill [HL]
Part 2 — The Attorney General

7

 

(c)   

in relation to the Director of Revenue and Customs Prosecutions,

section 37(4) of the Commissioners for Revenue and Customs Act 2005

(c. 11);

(d)   

in relation to the Director of Service Prosecutions, section 365(4A) of the

Armed Forces Act 2006 (c. 52).

5

(2)   

In section 11(1)—

“existing enactment” means an enactment contained in an Act passed on

or before the last day of the Session in which this Act is passed;

“existing provision of subordinate legislation” means a provision of

subordinate legislation made on or before that day;

10

“amend” includes repeal or revoke.

(3)   

In sections 11 and 12 and this section “subordinate legislation” has the same

meaning as in the Interpretation Act 1978 (c. 30).

Powers of intervention in relation to proceedings and investigations

14      

Abolition of nolle prosequi

15

The power of the Attorney General to enter a nolle prosequi is abolished in

relation to proceedings in England and Wales.

15      

Duty to intervene on ministerial certificate concerning national security

(1)   

This section applies where the Attorney General receives a certificate signed by

a Minister of the Crown stating that the Minister is satisfied that—

20

(a)   

the carrying out of an investigation of specified matters, or

(b)   

the institution or continuation of proceedings for a specified offence,

   

is likely to prejudice national security.

(2)   

The Attorney General must give such of the following directions as appear to

the Attorney General to be necessary for the purpose of avoiding the prejudice

25

to national security referred to in the certificate—

(a)   

a direction to the Director of the Serious Fraud Office that no

investigation of specified matters is to take place in England and Wales;

(b)   

a direction to any prosecutor, in relation to an investigation of specified

matters, that no proceedings for an offence are to be instituted in

30

England and Wales in respect of those matters;

(c)   

a direction to any prosecutor that proceedings for a specified offence

which are being conducted in England and Wales against a specified

person are not to be continued.

(3)   

The Attorney General must withdraw any direction given under subsection (2)

35

if directed to do so by a Minister of the Crown.

(4)   

In this section—

“offence” includes a service offence as defined by section 50 of the Armed

Forces Act 2006;

“prosecutor”, in relation to an offence, means any person who—

40

(a)   

has the conduct of proceedings for the offence, or

(b)   

has the function of or is determining whether proceedings for

the offence should be instituted;

 
 

 
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