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The Earl of Onslow: My Lords, it would be incredibly simple to fix this. The guidance could be written out and it could say at the bottom, "For advice ring Whitehall 1234", and you would get straight through
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Lord Tunnicliffe: My Lords, I apologise to the noble Lords, Lord Goodhart, Lord Williamson, Lord Borrie and Lord Henley, the noble and learned Lord, Lord Mackay, and the noble Earl, Lord Onslow, for not thanking them for their contributions in the previous debate. It was the pressure that we received from those noble Lords in Committee that led to our change of heart. I have particularly enjoyed some support so far this afternoon from those on the Liberal Benches. However, now is the time to be honest and say that, grateful as I am, I am not able to indulge a movement as far as they are requesting.
The new clause suggested in the amendment of the noble Lord, Lord Thomas, touches on many of the same issues addressed in the previous group of amendments. On the duty of the Secretary of State to publish guidance in relation to Clause 7 and, in particular, the defence in subsection (2), it is important to draw a clear distinction between the role of government and that of the courts and the independent prosecuting authorities. I cannot stress too highly that it is not the role of government to determine whether any procedure is "adequate" for the purposes of subsection (2) of Clause 7, either as a general response or in response to a specific request from a commercial organisation. The determination of that issue is one for the courts alone in the context of individual criminal proceedings.
That position nevertheless leaves the Government free to fulfil the entirely different and appropriate role of issuing guidance to commercial organisations to assist them in understanding what anti-bribery practices and procedures may be effective and in deciding which of those they may wish to put in place, depending very much on their size, market and assessment of the risk of bribery in their particular circumstances.
In many respects, the scheme envisaged by the noble Lord, Lord Thomas, represents a hybrid version of the schemes provided by the US Department of Justice and the Independent Commission Against Corruption in Hong Kong. The Joint Committee on the draft Bribery Bill considered the pros and cons of introducing a scheme along the lines of those operating in the United States and Hong Kong. Although the Joint Committee heard evidence from a number of witnesses from the business community in support of an advisory service and acknowledged that such schemes could have benefit, it rejected the idea on the grounds that it would be incompatible with our system and in particular may prejudice the independence of prosecutors.
Lord Thomas of Gresford: Would the noble Lord also agree that the Joint Committee said that it had not been given sufficient time by the Government to investigate this issue?
Lord Tunnicliffe: My Lords, I would not dream of gainsaying the noble Lord, Lord Thomas, in his recollection of the report. Nevertheless, we believe that the Joint Committee took that view. We are certainly clear that we are of that view.
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Moreover, it is difficult to see how much comfort such an advisory service could provide to businesses. The proposed new clause itself acknowledges this in the caveat in subsection (2). The amendment fails to recognise that advice given in isolation may be of little practical value. When a prosecutor or court considers the adequacy of procedures in an individual case, the exercise will be conducted by reference to the circumstances of the organisation, the facts that constitute the original offence committed by the person associated with the organisation, and all surrounding circumstances. It would not, therefore, be possible-even if it were appropriate to do so-to offer with any certainty any assessment of the adequacy of particular procedures in isolation from all the relevant facts. Quite apart from our belief that it would be wrong in principle for a government department to provide such advice, any advice that could be offered would-
Lord Clinton-Davis: Does this happen at present, or has it in the past? Informal advice is often given, is it not?
Lord Tunnicliffe: My Lords, I will come briefly to where we are at the moment. We believe that any advice that could be offered would be of questionable utility. In these circumstances such a service is unlikely to be attractive to those it is designed to benefit. I think I am effectively being asked which services the Government provide today. Getting it right is sufficiently important that I should not try to indicate to Members what those services are, other than to say that the Serious Fraud Office has published indicative guidance on how it approaches the prosecution of corporate bodies. This is not bespoke guidance to individual organisations. I will set out the extent to which government advisory services are helpful today in a letter to Members who have been involved in this debate. For all these reasons, I hope the noble Lord, Lord Thomas, can be persuaded to withdraw his amendment.
Lord Thomas of Gresford: My Lords, the Government are saying that if you ask for their advice they will not give it. There will be a prosecution and people must prove themselves in front of a jury. The effort involved in setting up a trial, and the cost of prosecution and defence, is enormous, whereas what I have suggested is very simple: phone 1234 and get a reply, as the noble Earl pointed out. I am grateful for the support that I have received from various Members. I look forward to receiving a letter from the Minister, setting out what current advisory services there are. I do not for a moment criticise the department that dealt with my query for the way in which it did so. It was a very proper thing for the department to do because I had no commercial interest in asking for its advice.
However, there are many organisations and companies, including those setting up in business, that have real commercial interests. What they want from the Bill is certainty. No honest business wants to commit a criminal offence, given all the expense and obloquy that such a conviction would bring to bear on it and its trade. I leave it to the Minister to consider the suggestion. I will not press this to a vote now. Before Third Reading
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5.30 pm
Clause 9 : Consent to prosecution
Lord Henley: My Lords, in moving Amendment 14, I shall speak also to Amendments 15 and 16. I have returned with these amendments, as I promised to do at the end of our first day in Grand Committee. They would amend the Bill so that the Attorney-General would be, as now, the person who gives consent for a prosecution under the Bill. Clause 9 currently gives that right to the Director of Public Prosecutions, the director of the Serious Fraud Office and, in England and Wales, the Director of Revenue and Customs Prosecutions. Amendment 14 would restore the Attorney-General in England and Wales, Amendment 15 would restore her in her capacity as Attorney-General and Amendment 16 is consequential.
I can be relatively brief. I set out my position clearly in Grand Committee and I will reiterate it today. I am not convinced that the case has fully been made by the Government for doing away with the Attorney-General as the law officer who makes the decision to prosecute bribery cases. Cases to be brought under the Bill are not likely to be numerous. They are likely to be big, complex and possibly controversial. That is the nature of some of the cases that we have seen in recent decades. The Saudi/BAE Systems affair was one such example referred to in that debate. It is because these cases are few but difficult that it is important to retain the role of the Attorney-General. I suggest that it will not put too great a burden on the Attorney-General's office to deal with around a dozen cases per annum. However, if the Minister has good reason to suspect that that figure might be drastically unrealistic, I will certainly listen to his comments.
In Committee, my noble and leaned friend argued passionately that, just because the integrity of politicians can be impugned, it is not a suitable response for politicians to accede to that and surrender our responsibility. Rather, politicians should be willing to uphold the integrity of a constitutionally respected office. That the Attorney-General sits in government is not weakness, even if that should not be the norm among fellow members of the OECD, which has raised questions about the position. It is an established strength of our system that a law officer as senior as the Attorney-General is directly answerable to Parliament. It is to this place or another that the Attorney-General must come to answer difficult questions about difficult decisions. In our view, that is right.
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In Grand Committee, I suggested that if the Government wished to tinker with the constitution they should await the Constitutional Reform and Governance Bill in which to do so. We still await that Bill. However, they have decided to press ahead with the proposals in this Bill. Therefore, it is right that we should have this debate today on the Floor of your Lordships' House.
Lord Clinton-Davis: Is the noble Lord putting forward a novel suggestion about the Attorney-General or is he trying to draw on other Acts of Parliament? I would like to know that. I was not a member of the Committee that considered this Bill.
Lord Henley: My Lords, if the noble Lord looks at my amendments, he will see that all I am suggesting is that we restore the power of the Attorney-General to make decisions on whether we prosecute. We discussed this in Committee. On that occasion, one or two former Attorney-Generals were not present and I said that I would come back to the issue because I thought that it would be a good idea to hear their views on the Bill. After we have had the relevant debate on this Bill, we might want to come back to it on the Constitutional Reform and Governance Bill, when and if we get that Bill, and when and if we get sufficient time to discuss it in this House. I notice that a wry smile has appeared on the Minister's face, which he is now trying to suppress. I suspect that we shall not have much time to discuss that Bill when it arrives, but it is just possible that we will. However, in the mean time, there is no reason why we cannot have such a discussion on this Bill this evening. I beg to move.
Lord Lester of Herne Hill: My Lords, I have not previously taken part in the debates on this Bill and I speak on this amendment only in order to make it quite clear that I strongly oppose it. No one need be surprised by that, having regard to previous debates about the role of the Attorney-General.
It is my experience that all previous law officers-apart from, I think, the noble and learned Lord, Lord Falconer-whenever confronted with the issue as to whether a politician should also be the chief government legal adviser, have said that the answer is obvious and that the old system works perfectly well. That is not my view. The Minister knows from the time when I was independent adviser within the Ministry of Justice that I for one strongly believe that it is time that we separated the role of the Attorney-General as a politician from the role of chief government legal adviser. If anyone wants any proof of why that is desirable, they have only to recall the role of the Attorney-General in the BAE affair and the halting of the investigation. If that is not sufficient, they should look at the Iraq inquiry and the role of the Attorney-General in relation to Ministers and politics in that regard.
The Prime Minister originally raised expectations that there might be change in this area. Those expectations have not been met and I regret that that is so, but I strongly feel that, when one is dealing with bribery, decisions about prosecutions should be taken by the
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What convinced me originally that the schizophrenic role of the Attorney-General was unsustainable was the Spycatcher case many years ago. I recall that the noble Lord, Lord Pannick, was my junior in that case. We were against the Attorney-General, who was there as the guardian of the public interest, but in fact was there as lawyer for the Crown for the noble Baroness, Lady Thatcher. I found it impossible to distinguish in my mind between the role of the Attorney-General in seeking a gag order to prevent the press from publishing extracts from Peter Wright's controversial book as counsel for his client, the Government, and his role as guardian of the public interest.
I do not expect anyone present in the Chamber who has held the office of Attorney-General or Solicitor-General to agree with what I have just said, but I hope that they would agree that an amendment to put the clock back so that the decisions on bribery prosecution were taken by the Attorney-General, not the DPP, is not one that would command respect in this House.
Lord Lyell of Markyate: My Lords, I greatly respect the noble Lord, Lord Lester, who has enormous expertise in a number of fields, but I am afraid that he is entirely right when he anticipates that my opinion on this is diametrically opposed to his. Put quite succinctly, I can think of nobody who has been first law officer of the Crown-that is the position of the Attorney-General-who would put politics before their duty to deal with the public interest. If they have made mistakes in this matter, I believe that those mistakes have been bona fide. I certainly had a long apprenticeship in this field. I do not believe that the noble Lord, Lord Lester, does justice to Lord Havers when, as Sir Michael Havers, he was Attorney-General. I remember being his PPS at the time. I think that the noble Lord has a personal view on this with which I cannot agree.
The vital matter is that, when the Attorney-General takes any decision in the public interest, he is not acting as a party politician. If he or she were to allow themselves to act as a party politician, he or she would break the whole tradition and background of the office. It is not party considerations or the party interest that the Attorney-General or the Solicitor-General is considering; it is the public interest. Prosecution decisions par excellence are taken entirely in the public interest. Speaking personally, I have never had the slightest difficulty in knowing the difference between public and party interest and I believe that I never had the slightest difficulty in following the public interest.
What is more, if an Attorney-General or a law officer strays from the narrow path that it is their absolute duty to follow, they are answerable in Parliament directly; indeed, they can be very severely criticised and should recognise that. To a far greater extent than Directors of Public Prosecution, although they are excellent people who sometimes come before Select Committees or committees of this House or the other place, the law officers of the Crown are by tradition Members of one House or the other-as far as possible preferably of the other place-and are answerable as such.
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I believe that all that my noble friend's amendment is seeking to do is to retain a position that is thoroughly well founded and ought to be retained. If, as my noble friend said, there is to be discussion on this, it should be full discussion in the very widest context. We should not use the Bill, which there is strong desire to support-I strongly desire to support it-to make a massive constitutional change, which I believe is deeply erroneous.
The noble Lord, Lord Lester, raised the BAE case. I would be tempted to point out that actually the decision was taken by two public officials and not by the Attorney-General, although it was approved by the Attorney-General. I am not going to impugn either of those public officials-the director of the Serious Fraud Office or our ambassador in Saudi Arabia-in this context. This is a matter of immensely important principle and we should not seek to change the law here.
Lord Mayhew of Twysden: My Lords, I shall not disappoint the noble Lord, Lord Lester. I certainly would like to be able to say, and almost can say, in relation to the speech of my noble and learned friend Lord Lyell, that I agree and have nothing to add. However, I have one small thing to add, which will not have anything to do with Spycatcher, a case that I remember extremely well, in which I considered that all the best arguments were on my side while all the best jokes were on the side of Mr Wright and all those who appeared on his behalf.
In my respectful submission, there is no doughtier upholder of the constitutional position of the Attorney-General and its viability than the present holder of that office. It is worth drawing the attention of the House to what she said to the Joint Committee, which is cited at page 59 of the report:
"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".
"Any broader reform of the Attorney General's Office, including her power of direction, must await comprehensive proposals being pursued in the future".
I do not think that it is the end of the world if the power of consent in this case is transferred to the director, but I think that it would be premature to decide that now. That is the basis on which I am entirely content to support my noble friend's amendment.
5.45 pm
Lord Lester of Herne Hill: I am sorry that the noble and learned Lord thought that the best jokes were on his side. Does he remember the joke, when the extract from the book and the book itself were widely available through US publication, in the cartoon showing the Prime Minister as Titania, saying to the ass:
"Thou art as wise as thou art beautiful"?
Lord Mayhew of Twysden: If I were to recall at this distance all the many cartoons adverse to one activity or another of mine in the public service, I should have an even more overloaded memory than I do at the moment.
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Lord Goodhart: My Lords, I am afraid that I am unable to support the role that the noble and learned Lords would like to see the Attorney-General maintaining. First, I refer to the paragraph from chapter 9 of the Joint Committee's report, on the subject of the Attorney-General. The conclusion was:
"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".
I should say that that, like the other decisions made by the Joint Committee, was a unanimous decision taken, I think, on the last day before the report was signed and published. I specifically remember that the noble and learned Lord, Lord Lyell of Markyate, was present at that meeting and did not argue to the contrary-
Lord Lyell of Markyate: I am most grateful to the noble Lord for giving way. Since I have been mentioned, I will say that the noble Lord will remember that Mr Bruce George pointed out to us that there was an absolute tradition in these Joint Committees that they were always unanimous and that we must make it unanimous. Unanimous we made it. The unanimity really ought to be seen in that context.
Lord Goodhart: Joint Committees are not always unanimous. On that occasion, I would have been prepared to object to a majority view if I had felt it necessary to do so.
There is no need for the Attorney-General to consent to prosecutions. The consent of the head of the prosecuting department is sufficient. That was the view of the Attorney-General herself when giving evidence to the Joint Committee. The Attorney-General will still have the power to give directions and, if she has the power to give directions, I see no reason why she should also have the necessity of consenting.
It is not for this Bill to decide the wider aspect of the role of the Attorney-General. I must say that I would be quite happy to see that role disappear altogether in this respect, but clearly not in the light of the Bill. Requiring consent of the Attorney-General to all prosecutions for bribery is one practice that has outlasted its time. In that respect, it is a little like the practice of the old days, when the Attorney-General had to prosecute in poisoning trials. I think that it ought to go into the same wastepaper basket as that.
Baroness Whitaker: My Lords, I will not take up the House's time in repeating exactly what I said in Committee, but I should like to draw back to the attention of the House the historical context of the role of the Attorney-General.
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