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I know that continental countries have an entirely different system, but, as the Minister said in our debate on the previous amendment, the Joint Committee felt that the examples given in support of the noble Lord, Lord Thomas of Gresford, were from a different system and therefore could be set aside. I suggest that we should not, in our constitutional principles, give way to the manner of handling these matters that has prevailed in some other countries. I have no doubt whatever that the Attorney-General is the proper person to account to Parliament in this very important area of the Bill. As we know, the noble and learned Lord the Attorney-General of the day did exactly that in relation to the SFO matter.

One colleague in the Lords said in a debate on the planning system and on whether the decisions in planning should be taken by Ministers or by a panel that you could not trust democratically-elected people to take unpopular decisions within sight of an election. Any Government who give way to that kind of principle in the future will certainly be in a very chaotic position. I believe very strongly that we should maintain the position of the independent law officer who is associated with the Government and a member of the Government for certain matters but who on prosecution policy is completely independent of Cabinet colleagues who have no responsibility assigned to them in that matter.

Perhaps I may say that I have the most profound confidence, if that is the right word, in the present Attorney-General to carry out this role efficiently. I do not believe for a minute that there is any question of her interfering with the decisions of the directors, but, being intimate to them and having responsibility for them, she is in a better position to account to Parliament for the result than she would be if she did not carry that responsibility.



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Lord Goodhart: My Lords, there is a most distinguished league of former Attorneys-General sitting nowadays on the Conservative Benches in your Lordships' House. They are strongly and very persuasively supported by the even more distinguished noble and learned Lord the former Lord Chancellor. But I regret to say that I am not persuaded by them. Clause 10 removes the need for consent to a prosecution to be given by the Attorney-General. However, she retains the powers of direction, which is important. This provision was agreed unanimously by the Joint Committee. Volume 1 of the report on the draft Bribery Bill makes reference to the Attorney-General. Paragraph 171 states:

"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 ... Any broader reform of the Attorney General's Office, including her power of direction, must await comprehensive proposals being pursued in the future".

As is true of all decisions of the Joint Committee, that was a unanimous decision.

I see no reason why the Attorney-General should be required to consent to any prosecution for bribery, however minor the case. Bribery is not distinct from other offences. The Attorney-General does not have to give her consent to every trial for murder. It is not a matter of trust. I, too, have the utmost trust in the present Attorney-General and think that she is an outstanding holder of that office, but I do not think that that in itself is a reason for retaining her power to give consent. It is of course arguable that the Attorney-General's power of direction should be removed as well. That, indeed, is the Attorney-General's own view, as stated in paragraph 170, which states:

"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"-

that is, the protocol between her and those responsible for prosecutorial decisions. However, I accept that, as the Attorney-General said, this would be a change in the constitutional role of the office of Attorney-General, which it would not be appropriate to include in this Bill.

I would suggest that that reflects in no way on the behaviour of the present Attorney-General or any foreseeable behaviour by future Attorneys-General. But it seems to me that this would remove from the Attorney-General what is, frankly, an anomalous power, which is the requirement that any prosecution for bribery must receive her consent.

5.45 pm

Baroness Whitaker: My Lords, with some trepidation as a citizen rather than a lawyer, I would like to say why I think this amendment ought to be resisted. First of all, like many other enshrined British traditions, it is worth unpicking how it originated. I think its purpose in 1906 was to prevent irresponsible private prosecutions. Of course, there was no DPP then. It seems to me that the DPP system is hardly likely to allow irresponsible

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private prosecutions. He has a duty to safeguard the public interest, so I think it is the last thing that he would do.

The second point, which appears to me very important, is the very powerful OECD principle against anyone with a political role having a hand in a prosecution decision and anyone with a political role indeed making a decision about a prosecution and then having to be accountable for that to the legislature. I absolutely understand the respect which very distinguished former legal officers hold for the principle of the consent of the Attorney-General, and this is in no way a personal reflection. The OECD principle is not a personal reflection on the character of any individual law officer; it is a statement of a constitutional principle relating to the separation of powers. That is why I think it is important.

Following the noble Lord, Lord Goodhart, I think it is also important to remember that many decisions under the Bribery Act, as I hope it will become, will be on quite small matters. It will not always be BAe. I see a parallel with other prosecuting authorities. We do not ensure that the Attorney-General has to consent to Inland Revenue prosecutions. We do not ensure that the Attorney-General has to consent to Health and Safety Executive prosecutions. I really think that bribery is on that level.

My final point is, even so, even with all the considerations that I have just outlined, I am perfectly content, and I am sure everybody on the committee was, for the Attorney-General to retain the formal authority that he or she has under the present Bill. The Attorney-General has not been airbrushed out of the picture; simply, the role of the Attorney-General has been put in a proper constitutional context.

The Earl of Onslow: My Lords, I think that what we are looking at here is the result recently, or over the past 25 years, of rather disputed decisions by Attorneys-General. The Westland case springs to mind. If my noble and learned friend Lord Mayhew were here he would be able to inform us about that in much greater detail. There have been accusations thrown about about Lord Goodhart-sorry, the other one, the noble and learned Lord, Lord Goldsmith-and the Gulf War, and I think also on the withdrawal to do with BAe Systems. These have produced accusations that I am sure are untrue, because of all the people who I have met who have been involved in those, I have never doubted their personal integrity. I may have disagreed with them on some things, but never have I doubted their personal integrity in that particular role.

The noble Baroness, Lady Whitaker, talks about the separation of powers. This is one of the great myths. Montesquieu got it wrong and misunderstood Locke, which is why the American Constitution is different from ours. He failed to realise that all powers eventually end up in the sovereign, and so they have to come down. They do separate, but they do not have to be so rigidly separated as the Americans do. That gets them in just as many muddles as our one does.

Therefore, we should be careful about bandying around the concept of the separation of powers. We have had honest, upright men and women of great

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integrity as Attorneys-General, and we should not change things unless there is an obvious reason so to do. If we want to change the role of the Attorney-General, surely it should be done in a constitutional Bill with proper thought and proper pre-inquiry. Therefore, I support my noble friend on this amendment.

Lord Hodgson of Astley Abbotts: My Lords, I have not so far participated in the proceedings on this Bill but I should like to say a few words in support of my noble friend's amendment. I do so on grounds not of high principle but of practical commercial activity and the fact that this provision envisages at least three routes by which a prosecution can be launched. The danger therefore is of different thresholds of prosecution. Of course, the lawyers will say that the legal grounds are there and that they are statutory, but those in the real commercial world know that interpretations can vary greatly. When we have the additional words "with the consent of", that means that yet other people may wish to bring prosecutions and obtain the consent of the three bodies listed.

Those of us who have been involved in commercial activity will know of companies that have got across some of the bodies listed-in particular, HMRC. There may be a situation where a firm has done something with which HMRC disagrees and it may even have brought a prosecution and failed in its endeavours, but that means that that firm will then be marked by HMRC as a body whose future activity should be considered carefully. There is a real danger that in these circumstances people will find themselves being lifted up the scale for consideration for prosecution in connection with the activities considered under the Bill.

In the debate on the previous amendment, the noble Lord, Lord Thomas of Gresford, talked about certainty and efficacy. I think that my noble friend is saying-and I certainly support it-that it is a question not of being indifferent to bribery but of practical commercial activities, and the Attorney-General, who is of high principle, should be the person through whom a prosecution is launched without having many alternatives.

Lord Bach: My Lords, with these amendments the noble Lord, Lord Henley, seeks to retain the requirement to obtain the prior consent of the Attorney-General before commencing proceedings for the new statutory bribery offences. He is right: there was considerable strength in the arguments put on this side at Second Reading, but I know that he will be the first to agree that there was also considerable strength in the arguments put on the other side. This is one of those issues where there seems to be a genuine difference of opinion and it is rightly debated today.

My ears pricked up and I sat up to listen when the noble Earl, Lord Onslow, started to say that there were accusations against the noble Lord, Lord Goodhart, in this field. It may be that the noble Earl has a crystal ball that the rest of us do not have and that one day-

The Earl of Onslow: My Lords-



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Lord Bach: Perhaps I may just finish the point and then of course I shall give way. Perhaps one day the noble Lord, Lord Goodhart, will be open to these accusations in the same way as others have been. I know not.

The Earl of Onslow: I must set the record straight. It was purely an idle lapse of memory, which confused me. I was not in any way assuming it to be the noble Lord, Lord Goodhart. I knew that I meant the noble and learned Lord, Lord Goldsmith.

Lord Bach: I think I knew that too.

We all agree, I hope, that there is need for a consent provision for the new bribery offences to ensure, if nothing else, consistency in prosecution decisions. That does not appear to be an issue. What is an issue is the level at which such consent should be given. There are strong arguments on both sides. I say to our distinguished ex-law officers that in providing for consent to be given by the director of the relevant prosecution authority, we are not for one moment suggesting that previous Attorneys have done anything other than their duty in their decisions on whether to grant consent to a particular prosecution.

Having said that, this is clearly a sensitive area, where perceptions matter as much as reality. As the Joint Committee which considered the draft Corruption Bill in 2003 put it:

"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".

This view is shared by, among others, the OECD itself; the Council of Europe's monitoring body; Transparency International UK in a particularly strong way; and the Corner House. Importantly, the recent Joint Committee was similarly satisfied, as the noble Lord, Lord Goodhart, reminded us, that the power of consent should be transferred from the Attorney-General to the director of the relevant prosecution authority. The Law Commission was also of this view.

I do not dismiss lightly the arguments around the need for parliamentary accountability for such important decisions. However, such accountability will continue to be provided through the Attorney-General's fulfilment of her important role in superintending the main prosecuting authorities. The protocol between the Attorney and the prosecuting departments, published last July, sets out how the Attorney-General and the prosecutors will work together to ensure that the Attorney-General can discharge that responsibility. I know-and the Committee will know-that the present Attorney personally attaches considerable importance to parliamentary accountability. The noble and learned Lord, Lord Mayhew, asked my noble and learned friend the Attorney about this point when she gave evidence to the Joint Committee on 25 June. She made it clear to him and the Joint Committee that,

"Accountability will remain because, for so long as the Law Officers, that is the Attorney General and the Solicitor, remain the supervisors and superintendents of the prosecutorial authority, there is a vehicle through which that accountability can take place".



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Of course, a balance must be struck between prosecutorial independence and parliamentary accountability.

This is not the occasion for debate on any wider reform of the powers of the Attorney, but it is right that when legislating for new offences we consider on a case-by-case basis-as we are today-whether there is a need for prior consent to a prosecution and, if so, at what level such consent should be granted or withheld. Our judgment is that for the new bribery offence, prior consent to a prosecution is desirable and that it would be appropriate for such consent to be given by the director of the relevant prosecuting authority. This strikes the right balance and this view is widely shared by external organisations, some of which I have mentioned. Some of those organisations have been pressing us to reform our bribery laws for some years. We should heed their views and I therefore invite the noble Lord to withdraw his amendments.

The passion with which the noble and learned Lord, Lord Mackay of Clashfern, supported the amendment is something that we very much take into consideration. His defence of the status quo is a powerful argument. We do not agree with him on this occasion. I want to put right one factual matter that the noble and learned Lord mentioned, which was also referred to in passing by the noble Earl, Lord Onslow. The decision about the Serious Fraud Office's discontinuance of what has been described as the BAE Saudi investigation was made by the director of the Serious Fraud Office and not the Attorney-General of the day. I want to put that clearly on the record.

Lord Mackay of Clashfern: That is the factual position as I have known it, but the accountability of the Attorney-General for that decision was what was important. The accountability is the main issue as far as I am concerned, although consent is part of that.

Lord Bach: I repeat that in our view accountability stays with the Attorney-General as I have tried to describe. I invite the noble Lord to withdraw his amendment.

Lord Henley: My Lords, in my generous way and in accordance with proceedings of the Committee, I shall in due course withdraw the amendment. However, I assure the Minister that I shall bring it back on Report, because others may take part in this debate and such an important point needs to be debated by a fuller House than is possible in a Committee in the Moses Room at six o'clock on a Thursday evening in January. With that, I beg leave to withdraw the amendment.

Amendment 18 withdrawn.

Amendments 19 and 20 not moved.

Clause 9 agreed.

Committee adjourned at 6.01 pm.


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