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Bribery Bill [HL]

My Lords, I thank all noble Lords who have taken part in this debate on the amendment of the noble Lord, Lord Henley. I apologise for smiling at him; he has been so kind to the Government this afternoon that I thought it was worth a wry smile, if nothing else—but obviously it did not particularly appeal to him. Before I enter into the debate, on the question of unanimity or otherwise, there was an interesting argument which related to all committees—Select Committees or Joint Committees. Sometimes unanimity is not the real point. I speak as a slightly hard-bitten Minister, but I think that it is the number of people present when the reports are finally agreed that may be of more importance than necessarily is the unanimity of all members of the committee. I return to the subject before the House. It has prompted an interesting and robust debate, as it always does, and did at Second Reading and in Committee, on the constitutional importance of the Attorney-General’s role and responsibilities. The subject generates significant passion on both sides of the argument and we have had the good fortune to hear from noble and learned Lords with direct experience of this office and the responsibilities that it entails. No one on either side of the argument would disregard the constitutional importance of the Attorney-General’s position or the need to maintain effective parliamentary accountability for the operation of the prosecution services. Of course, no one seeks to question the distinguished service given by all former law officers or the independence with which they have exercised their powers. I believe it is common ground that it is appropriate to retain a consent provision for the new bribery offence. Clause 9 provides for this responsibility to be exercised by the directors of the relevant prosecuting authorities. It is the Government’s view that this is the appropriate level at which decisions for these offences should be taken. I remind the House that these directors already exercise the consent function in respect of a number of other offences, and the vast majority of prosecutions take place without any involvement by the Attorney-General. As some noble Lords have commented, bribery cases will not normally hold such significance and sensitivity to be of national interest. Where, in the exceptional case that they do, the directors are already empowered to protect the public interest. We see no practical advantage in retaining in the Bill a requirement for the Attorney-General’s consent as opposed to that of the directors of the prosecuting authorities. My noble friend Lady Whitaker, who has spoken on this again today, remarked in Grand Committee: ""The Attorney-General has not been airbrushed out of the picture".—[Official Report, 7/1/10; col. GC 69.]" That is right. My noble and learned friend the Attorney-General will continue to have a fundamental role in these matters, as she does at present in relation to the work of the directors of the prosecuting authorities. However, the decision on prosecution will rest with the directors. This is an important principle because the protocol between the Attorney-General and the prosecuting authorities published in 2009 sets out the circumstances in which the Attorney-General will or will not be consulted, and how the Attorney-General and her directors will engage with one another. The protocol serves to underline that the directors of the prosecuting authorities exercise their statutory functions under the superintendence of the Attorney-General, who is of course responsible to Parliament for the directors’ functions in relation to prosecutions. The Attorney-General is in turn responsible for safeguarding the independence of prosecutors in taking prosecuting decisions. As reflected in the protocol, the Attorney-General will also retain an exceptional power to give a direction in relation to any case which threatens national security, in which case the protocol requires her to report to Parliament. The Attorney-General herself made the point in evidence to the Joint Committee on 25 June last year. She stated: ""Accountability will remain because, for so long as the Law Officers, that is the Attorney General and the Solicitor, remain the supervisors and the superintendents of the prosecutorial authority, there is a vehicle through which that accountability can take place"." The Joint Committee’s final report, as the noble Lord, Lord Goodhart, reminded us, firmly endorsed the proposal to transfer the power of consent from the Attorney-General to the directors of the prosecuting authorities. Many others have, as it happens, expressed their support for this proposal, including the OECD, the Council of Europe monitoring body GRECO, Transparency International and The Corner House, all of which have been active for some time in pressing us to reform our bribery laws. I have done my best to show that while the Bill will transfer the power of consent from the Attorney-General to the directors, the Attorney-General’s other responsibilities in relation to prosecution decisions remain unchanged. In particular, the Bill does not undermine the fundamental constitutional position of the Attorney-General or her accountability to Parliament for the decisions taken by the directors of the prosecuting authorities. That is all I have to say on this group of amendments. I hope that the noble Lord, Lord Henley, will not push the matter to a Division.