Clause 10 — Consent to prosecution

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

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Photo of David Howarth David Howarth Shadow Secretary of State for Justice 2:31 pm, 7th April 2010

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.

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