Clause 10 — Consent to prosecution

Business of the House – in the House of Commons at 2:31 pm on 7 April 2010.

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Photo of Alan Haselhurst Alan Haselhurst Deputy Speaker and Chairman of Ways and Means

With this it will be convenient to discuss the following: Amendment 2, page 6, line 33, leave out paragraphs (a) and (b) and insert 'the Attorney General'.

Government amendment 7.

Photo of Jonathan Djanogly Jonathan Djanogly Shadow Minister (Business, Innovation and Skills), Shadow Solicitor General, Shadow Minister (Justice), Shadow Solicitor General

Under the existing law, prosecutions for bribery cannot be commenced without the consent of the Attorney-General. As drafted, the Bill would give that power to the Director of Public Prosecutions, the director of the Serious Fraud Office or the director of Revenue and Customs prosecutions in England and Wales.

The constitutional position of the Attorney-General, as the individual making prosecution decisions, is enshrined in more than 100 years of parliamentary convention. Our concern remains that if we are to realign the role of the Attorney-General, it should be following a full discussion in the widest context. The Government had a vehicle to allow a full debate on that and many other matters in the Constitutional Reform and Governance Bill, but they did not make use of it. We remain concerned that this Bill's tweaking of the Attorney-General's role is simply putting off the necessary wider debate on it.

Photo of David Howarth David Howarth Shadow Secretary of State for Justice

Perhaps this provides the hon. Gentleman with an opportunity to clear up a puzzle that has been on my mind throughout our debates. What is his party's position on the wider debate about the Attorney-General's role?

Photo of Jonathan Djanogly Jonathan Djanogly Shadow Minister (Business, Innovation and Skills), Shadow Solicitor General, Shadow Minister (Justice), Shadow Solicitor General

We touched on that in Committee, but from looking at the amendments, I do not believe that it is an appropriate debate to have now.

We also had concerns, as reflected in amendments 1 and 2, that in delegating powers to the directors of the prosecuting agencies, there was a danger that we would lose the opportunity for parliamentary accountability. We voiced those concerns in Committee and emphasised the lack of accountability that could arise if the directors were the decision-makers rather than the Attorney-General. Those concerns were compounded by the fact the directors themselves could delegate such powers to subordinates in their organisation.

That latter concern will be partly resolved by Government amendment 7, which we intend to accept. It is intended to ensure that the prosecutorial power in the hands of the directors of the SFO, HMRC and the DPP cannot easily be delegated to others within those organisations. Given that the volume of cases that reach prosecution each year is, I am told, in the region of only 20, and that the Government predict a rise in that number of only some 1.3 cases a year, we do not believe that the delegation of that important power would be appropriate, except in the most limited circumstances.

However, even with the Government amendment, we could confuse the lines of authority unless care is taken. By that, I mean that we will now have three people fulfilling a role that has previously been occupied by only one-the Attorney-General. With that increase in numbers comes the potential for conflicting prosecution policies to develop. Business and prosecutors can ill afford that if the vital need for certainty and precedent is to be upheld. We have argued that we must drive for consistency and clarity in the Bill so that the parameters of offences are clearly demarcated. Such clarity will help to ensure compliance. Little that we heard in Committee, or from various other sources, suggests that we have yet given adequate thought to the matter or put in place adequate procedures to ensure that overlap does not occur.

Of course, the matter would have been even more problematic if the directors were able to delegate down the chain of their own organisations, essentially multiplying the number of prosecutorial policies that could be followed. The Government have therefore gone some way to removing our fears through their amendment. We heard from the Minister in Committee that protocols now exist between the directors and the Attorney-General that govern the accountability of their decision making, and we will have to see how those protocols work. Although the Government amendment strengthens the position by preventing the decision-making powers from being passed down the chain, diluting accountability further, we feel that it may not go far enough.

I end by confirming that ensuring that we have a clear and workable uniform prosecution policy across the three organisations will be a priority for a Conservative Government.

Photo of David Howarth David Howarth Shadow Secretary of State for Justice

It is a shame that Mr. Djanogly was not able to answer my question about the overall position of the Attorney-General, because it is important to have that clear. It is why I oppose amendment 1.

My view-I wanted to express it during the debates on the Constitutional Reform and Governance Bill but the relevant amendments were not reached-is that the Attorney-General should not have a direct role in prosecution decisions about whether individual people are prosecuted across the board, not just in the area in question but in all areas. That originally appeared to be the Government's position, but for reasons that remain obscure because we did not have a proper debate, the Government moved away from that position and moved instead simply to having a non-legally enforceable protocol between the Attorney-General and the three directors whom the hon. Gentleman mentioned.

One question that remains is how that protocol will apply, because assuming that Government amendment 7 is agreed to, the Attorney-General will still have a superintendence power over the director of the SFO. To make it absolutely clear, in the case of the SFO, that power applies not just to decisions on whether to prosecute but to decisions on whether to investigate. It is much broader than the power over the other directors. It was in that regard that all the trouble broke out about the BAE Systems case. The use of that power was threatened- although in the end it was technically never used-to induce the director of the SFO to call off the investigation of the BAES company's activities in Saudi Arabia with regard to the al-Yamamah case. That problem remains.

Amendment 1, tabled by the hon. Member for Huntingdon, would make the situation worse. It would replace superintendence with a direct decision-making power over investigations. I say to him-he knows this, as we discussed it in Committee-that that position has been fundamentally questioned internationally by the OECD and by respected international non-governmental organisations such as Transparency International. Confidence in the independence of a prosecution system is absolutely crucial to the main task of the Bill, which is to restore this country's reputation as one that fights corruption. That reputation has been tarnished by the events concerning the dealings of BAES in Saudi Arabia. If we go down his route, we will not succeed in restoring this country's reputation; we will continue with the present situation, in which we are slipping down the league, in terms of our international standing in the fight against corruption. However, it sounded like he was going to withdraw his amendment in favour of the Government amendment, which I hope is the case, because his amendment would be very damaging.

I turn briefly to the Government amendment. To paraphrase Douglas Adams, this amendment is mostly harmless. As the hon. Gentleman explained, it states that in cases where the director's discretion is engaged, the decision should be taken personally, as far as is practically possible, rather than delegated. As he said, at the moment, the number of cases concerned is quite small, so, in present circumstances, no great practical difficulty would be imposed on a director by the Government amendment.

I have one concern, however, about what will happen if there is an increase in the amount of work being done in this area. We all hope that an increase in work is not necessary because the Bill, when passed, will deter those who seek to make or receive bribes from doing so. However, it seems that there is a risk. One of the purposes of the Bill is to clarify the law, and it does that, which is why it is a good Bill and I support it. When passed, however, it might have one of two effects: it might make clearer to potential offenders what they should not do and result, therefore, in their not doing it, or-this is quite possible, and is part of the intention-it might make it easier for prosecutors to get a case together and bring it against offenders. If that is the route we take, we will end up with more cases, and I have a slight doubt about whether it is plausible in the longer term to use a director's personal discretion if there are 10 times more cases than now. However, with that caveat, I am happy not to oppose the Government amendment and very much urge the hon. Member for Huntingdon to withdraw amendment 1. If he does not, I shall oppose it.

Photo of Claire Ward Claire Ward Parliamentary Under-Secretary, Ministry of Justice

We had a good opportunity in Committee to debate the important issues relating to consent to prosecution. Mr. Djanogly argued in Committee, as he has done here, that the offences under the Bill are sufficiently serious to justify vesting responsibility for consenting to a prosecution to the Attorney-General rather than to the director of the relevant prosecuting authority.

Under existing prevention of corruption Acts, consent to prosecution is given by the Attorney-General, but those Acts were passed a century or more ago when there was no Director of Public Prosecutions or Serious Fraud Office. We are repealing those outdated Acts and starting with a clean sheet. In doing so, it is right and proper that we consider objectively whether consent to prosecution should be given by the Attorney-General or by the director of the relevant prosecuting authority. We have a choice that our predecessors did not have in 1889 and 1906.

The offences in the Bill will cover a wide range of conduct. I agree that some will be very serious, but others will be less so. On any objective examination of the issue, the offences in this Bill are not ones that require the Attorney-General's consent. To the extent that any given case engages issues of national security, the Attorney-General's superintending powers are such as to enable her to intervene. David Howarth is correct to highlight that.

I accept, however, that the question of whether to consent to a prosecution for one of the offences in the Bill can give rise to more difficult and sensitive considerations than is normally the case. For this reason, I see an argument for special arrangements to apply in this instance. Government amendment 7 would therefore require that the function of consenting to a prosecution must be exercised personally by the director of the relevant prosecuting authority, and a director would not be able to delegate the function to other prosecutors.

That said, of course we need to make some provision for the function to be exercised where the director is unavailable-for example, if the director was incapacitated or out of the country for a considerable number of days. The amendment therefore enables the DPP, the director of the Serious Fraud Office and the director of Revenue and Customs Prosecution Office to nominate another person to act when the director is unavailable. In the case of the DPP for Northern Ireland, the amendment preserves the position whereby the deputy director has all the powers of the DPP, but neither the director nor deputy director will be able to delegate the consent function under the Bill to another person.

I welcome the comments by the hon. Member for Huntingdon that he is looking favourably upon Government amendment 7 and the similar views expressed by the hon. Member for Cambridge on behalf of the Liberal Democrats. We believe that the amendment is an equitable middle way on the issue, and on that basis I commend it to the House.

Photo of Jonathan Djanogly Jonathan Djanogly Shadow Minister (Business, Innovation and Skills), Shadow Solicitor General, Shadow Minister (Justice), Shadow Solicitor General 2:45, 7 April 2010

My comments and those of David Howarth reflect what we believe is a need for a wider debate on the role of the Attorney-General, but I must say to him that today is not the time or place for such a debate. I say to the Liberal Democrats that, just because the OECD and other states do not have an Attorney-General, or do not like the idea of having one, does not, to my mind, make the role of the Attorney-General redundant. I say to the Minister as well that, just because the Attorney-General has been there for 100 years, does not mean that the role is redundant. However, given where we are in the parliamentary timetable, we have decided not to request a Division on amendments 1 and 2, and we will be supporting the Government on amendment 7. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Amendment made: 7, page 6, line 35, leave out subsections (3) to (5) and insert-

'(3) No proceedings for an offence under this Act may be instituted in England and Wales or Northern Ireland by a person-

(a) who is acting-

(i) under the direction or instruction of the Director of Public Prosecutions, the Director of the Serious Fraud Office or the Director of Revenue and Customs Prosecutions, or

(ii) on behalf of such a Director, or

(b) to whom such a function has been assigned by such a Director, except with the consent of the Director concerned to the institution of the proceedings.

(4) The Director of Public Prosecutions, the Director of the Serious Fraud Office and the Director of Revenue and Customs Prosecutions must exercise personally any function under subsection (1), (2) or (3) of giving consent.

(5) The only exception is if-

(a) the Director concerned is unavailable, and

(b) there is another person who is designated in writing by the Director acting personally as the person who is authorised to exercise any such function when the Director is unavailable.

(6) In that case, the other person may exercise the function but must do so personally.

(7) Subsections (4) to (6) apply instead of any other provisions which would otherwise have enabled any function of the Director of Public Prosecutions, the Director of the Serious Fraud Office or the Director of Revenue and Customs Prosecutions under subsection (1), (2) or (3) of giving consent to be exercised by a person other than the Director concerned.

(8) No proceedings for an offence under this Act may be instituted in Northern Ireland by virtue of section 36 of the Justice (Northern Ireland) Act 2002 (delegation of the functions of the Director of Public Prosecutions for Northern Ireland to persons other than the Deputy Director) except with the consent of the Director of Public Prosecutions for Northern Ireland to the institution of the proceedings.

(9) The Director of Public Prosecutions for Northern Ireland must exercise personally any function under subsection (2) or (8) of giving consent unless the function is exercised personally by the Deputy Director of Public Prosecutions for Northern Ireland by virtue of section 30(4) or (7) of the Act of 2002 (powers of Deputy Director to exercise functions of Director).

(10) Subsection (9) applies instead of section 36 of the Act of 2002 in relation to the functions of the Director of Public Prosecutions for Northern Ireland and the Deputy Director of Public Prosecutions for Northern Ireland under, or (as the case may be) by virtue of, subsections (2) and (8) above of giving consent.'.- (Claire Ward.)

Third Reading

Photo of Claire Ward Claire Ward Parliamentary Under-Secretary, Ministry of Justice 2:48, 7 April 2010

I beg to move, That the Bill be now read the Third time.

This Bill will bring about a much-needed overhaul of our criminal law as it applies to bribery. With the Bill on the statue book, we can be proud that United Kingdom law in this area will provide a benchmark for other countries, and with it this country will set the gold standard-I used that term in Committee-for our international comparators. The Bill will help to promote high ethical standards in business and public life, in this country and abroad, and will send a clear message that bribery in all its manifestations will not, and should not, be tolerated.

The Bill will be good for business; often commercial organisations bear the burden of the added costs of doing business in countries where bribery is prevalent. The Bill will also be good for developing countries by helping to ensure that aid and trade benefits those whom it is intended to benefit, and not corrupt officials. The Bill will be good for this country's international reputation, by demonstrating our ongoing commitment to upholding high standards of probity in business and public life. Finally, the Bill will be good for Parliament, demonstrating the value of pre-legislative scrutiny in forging a broad consensus for reform. The Bill has taken a considerable time finally to reach this point, but I believe that it has achieved a broad consensus across the House and that, in reaching that consensus, this House has produced a Bill that is worthy of setting that gold standard.

I want to take this opportunity to thank all those, particularly in the business sector, who have been available for discussion and to ensure that we had an opportunity to get the Bill right. I also want to thank Opposition parties for their co-operation-for the most part-and those of my officials who have ensured the smooth progression of the Bill. I am grateful to hon. Members for helping us to build what has generally been a consensus, which has now brought the Bill to the threshold of Royal Assent. I am proud, as the Member of Parliament for Watford and as a Minister, to have brought the Bill through to Royal Assent. On that basis I commend it to the House.

Photo of Jonathan Djanogly Jonathan Djanogly Shadow Minister (Business, Innovation and Skills), Shadow Solicitor General, Shadow Minister (Justice), Shadow Solicitor General 2:51, 7 April 2010

Bribery is a crime that undercuts competitiveness, derails honest companies and distorts the marketplace. Those who bribe and those who are bribed, whether in commercial organisations or governmental institutions, are thereby diminished by their actions, such that their legitimacy is called into question and the confidence of consumers and the public is weakened. Bribery also undermines the societies in which bribes are made.

With this Bill, Parliament is no longer accepting the excuse of local practice; rather, it is tying our flag to the highest levels of intentional probity. This is welcomed by the Conservatives. However, it is clear that in recent years, under this Labour Government's watch, the UK has fallen behind the standards of combating bribery that we have seen in other western countries, and our reputation has not been improved as a result. Conservatives therefore fully back the Bill and, in particular, are pleased that its implementation will finally make the UK compliant with the 1997 OECD anti-bribery convention. Notwithstanding our unhappiness with the delayed process, we have supported the Bill throughout the course of its journey through Parliament.

Without doubt, the outstanding feature of the Bill has been the delay in its arrival. Plans to update and rework our patchwork of antiquated laws have been mooted since the mid-1990s. As far back as 1998, the Law Commission reviewed the UK's corruption laws and formulated a draft Bill that was designed to replace all or parts of the existing relevant legal provisions on corruption and, at the same time, incorporate the common law offence of bribery. What followed was an almost pantomime-like to-ing and fro-ing by the Government when, until recently and in the dying days of this Parliament, we were presented with this Bill. The unacceptable rush that we faced to push the Bill through, in only a few weeks, is hardly an example of thoughtful or effective government.

The Bill before us today is largely based on a set of proposals developed by the Law Commission, in its 2008 report entitled "Reforming Bribery", which has subsequently been reviewed in this House and the other place. The debate in the other place focused mainly on the legal aspects of the Bill, while we attempted in Committee to stress test the practical application of certain provisions in the Bill. The sum total is a Bill that we generally think is considered and well thought out. It is a Bill that I hope will provide a coherent and comprehensive framework of criminal law-one that makes it abundantly clear that bribery has no place in this country and that it will not be tolerated in our commercial or other dealings with the rest of the world.

However, as rushed as the Bill has been, it is vital that it should be implemented only after full consultation with business and the preparation of appropriate guidance. We were pleased to receive the Minister's assurances on that point in Committee. Although we have decided not to move further amendments, providing for a business advisory service, this is certainly an area that we will wish to explore further in government, even if on a non-statutory basis.

Photo of David Howarth David Howarth Shadow Secretary of State for Justice

The hon. Gentleman will remember from Committee that I thought that he was on to quite a good idea with that proposal, although how it would work is a different question. However, will he go further and take up the points, which I was sorry to see him take up in Committee in the way that he did, about facilitation payments and other forms of bribery that have euphemistic names?

Photo of Alan Haselhurst Alan Haselhurst Deputy Speaker and Chairman of Ways and Means

Order. I hate to intervene on the hon. Gentleman so late in his career in this House, but he is inviting Mr. Djanogly to go outside the scope of the Third Reading debate.

Photo of Jonathan Djanogly Jonathan Djanogly Shadow Minister (Business, Innovation and Skills), Shadow Solicitor General, Shadow Minister (Justice), Shadow Solicitor General

I take your advice on such matters, Mr. Deputy Speaker.

We welcome the Government amendment today, which will ensure that the prosecutorial power held in the hands of the directors of the Serious Fraud Office and Her Majesty's Revenue and Customs, and the Director of Public Prosecutions cannot easily be delegated to others in those organisations. We did not believe that the delegation of that important power would be appropriate in all but the most limited circumstances.

The debate that has been had on the Bill has shone a light on the extent to which improper behaviour can so easily pervade business affairs. In an international context, it seems that the old adage, "When in Rome", has applied all too readily to acts of bribery in foreign lands. The Bill will place the UK at the head of a groundswell of international opinion that states that such behaviour will not be permitted; yet Conservatives believe that this should be seen only as the beginning, and not as the end of the process. The Bill is but one weapon in an arsenal to arm the UK in the fight against corruption. It will provide a framework of offences, but it will not, in itself, action anti-corruption measures. The Bill will not, in itself, issue prosecutions, create a healthy modern corporate culture or ensure that British companies are not undermined internationally by corrupt foreign competitors. In recent weeks the SFO has publicly announced cases in which it is investigating alleged acts of corruption. It must be hoped that the Bill will give the SFO and other prosecutors in future the necessary clarity to increase those investigations.

We decided not to move our amendments to provide for an annual strategy report, but the proper allocation of resources, and the monitoring of the Bill's implementation and development over the coming years will be important to ensure that it is up to the challenge of ensuring that the UK meets and beats global corruption in a way that has been seriously lacking during Labour's time in government. There is a large corporate responsibility role for business in playing its part too, and the next Conservative Government look forward to working with business on implementing this important agenda for Britain.

Photo of David Howarth David Howarth Shadow Secretary of State for Justice 2:57, 7 April 2010

I, too, very much welcome the Bill. Mr. Djanogly is right to say that it has taken a long time to reach this stage, although he is not right to say that the Bill has been particularly rushed, given the vast amount of discussion about previous versions of the reform, both in the Joint Committee of both Houses and in the other place. Although some Bills in the wash-up have been ill-served by the process, I am not particularly concerned about the amount of scrutiny that this Bill has had. We have come out with a good Bill.

The hon. Gentleman is also right that the most important purpose of the Bill is to restore this country's reputation, which was affected badly by some recent bribery cases. It remains to be seen whether the Government-whichever Government we have after the election-will still be fully committed to the fight against bribery. Using the tools that the Bill provides, it will be easier for prosecutors to build their cases, but they will be able to do so only if the Government-whoever they are-provide them with the resources that they need. However, it remains the case that the Government currently do not fund the SFO directly for its corruption work. Rather, the SFO is using resources from other parts of its funding to take that work forward. That must change. Equally, it is not right for the SFO to have to ask the Government for case-by-case funding-that is a constitutional matter that needs to be changed-although the underlying fact is that there will be an improvement for the SFO under the terms of the Bill.

The old law was extremely confusing. The idea that, in some circumstances, possibly-it was never entirely clear-a principal agent relationship needed to be established before a bribery offence could be proven always seemed entirely unjustified to people in the field. In fact, that is why there were many cases in which it was stated that that relationship was not required. The Bill makes it entirely clear that the old law relating to principal and agent has gone, whatever doubts there might have been about it, and that new, clear definitions of bribery have now been included in the law.

That is the first good thing that the Bill does. The second is to introduce an offence of bribing a foreign official, which this country-unlike many others around the world-has hitherto lacked. The provision is drafted in such a way as to make it clear that it is the standards of this country that count. Under the terms of the Bill, it will not be possible to say that we can bribe people because it is okay to do so in another culture. That will not be allowed. The standards that will apply are not vague cultural standards; they will be the written law of another state. There was some debate in Committee about whether businesses would be able to follow this part of the Bill, but I am sure that they will be able to do so. It will be their responsibility to ensure that they are complying with the law of the other state, with whose public officials they are dealing.

I very much welcome the Bill. In some of the debates, I was dismayed by the stance being taken by businesses. I understand their worries, but, in the interests of the reputation of this country and of British business, it would not be right-or even profitable-to question this country's position on the fight against bribery. In the relationship between the next Government, whoever they are, and business, I hope that the people in power will make it absolutely clear to business that its position will not be tolerated if it is likely to undermine the provisions of the Bill, which I am glad to support.

Photo of Bill Cash Bill Cash Conservative, Stone 3:02, 7 April 2010

I strongly support the Bill, but I would like to make one point that relates to a Bill that I introduced a couple of years ago: the International Development (Anti-corruption Audit) Bill. I speak as the chairman of several all-party groups on matters relating to the third world and developing nations, including Uganda and Kenya, and to the sanitation of water. At that time, I had a lot of discussions with people from the National Audit Office, the Public Accounts Committee and the Department for International Development. It emerged that there was a problem elsewhere in the world, and I know that this Bill addresses that problem, as does the OECD report.

I wonder, however, whether there will be sufficient sanctions in place for those who engage in bribery and corruption in third-world countries and elsewhere. This is not just a problem for the third world; it is found in the European Union and all other parts of the world. I am worried about what might happen if we do not have a sufficient degree of sanction in relation to the aid that we give, in terms of any restrictions that might be imposed after a warning has been given. If a Government have been given an opportunity to correct their behaviour and they simply do not do so, we might be left with a problem.

We can deal with this issue as a matter of domestic law here in the UK, and I know that the CBI, the Federation of Small Businesses and other organisations have been engaged in consultations with the Minister about how the guidance will operate. These problems will, however, have a serious impact, because so much of this goes on in those countries where the aid money does not reach the people who really need it. At that level, it is essential that the provisions in the Bill relate to what goes on in the countries concerned. If we cannot stop the corruption happening there by using our powers under the International Development Act 2002-which could be amended-I do not think that we will be able to solve the problem.

Perhaps it will never be possible for the whole problem of bribery and corruption to be solved; it has been going on since the world began. The fact is, however, that the Bill does not go quite far enough in tackling the inability of those people to receive the money that is intended for their benefit. The other side of the coin is the necessity to stimulate self-help and enterprise, thereby building up the economies of those countries.

I have had discussions with Hugh Bayley and others who deal with those countries that are prone to bribery and corruption as a way of life. I have also discussed these matters with Transparency International, and with the Global Infrastructure Anti-Corruption Centre, and I have no doubt that they have what the House of Commons Library note describes as

"impressive anti-bribery strategies on their websites", but I am not convinced that we have grappled with this enough. I do not think that we have quite got there, although I do support the Bill.

Question put and agreed to.

Bill accordingly read the Third time and passed, with amendments.