HC Deb 06 December 1995 vol 268 cc424-7
Mr. Cohen

I beg to move amendment No. 6, page 20, line 35, leave out 'section 2 or 11' and insert 'this Act'.

The Chairman

With this it will be convenient to discuss amendment No. 5, in page 20, line 41, leave out subsection (2).

Mr. Cohen

The amendments relate to offences, as defined by the Bill. The clause refers to sections 2 and 11 , which relate to the really serious offences—for example, those with potential life sentences for possessing, using, developing, producing or transferring chemical weapons. They require the consent of the Attorney-General to any prosecution.

There is a split in the authority to prosecute offences under the Bill. The serious offences require the consent of the Attorney-General, but for the minor offences scattered throughout the Bill it will be for the Secretary of State for Trade and Industry to say whether there should be prosecutions. I am not sure why there should be such a split.

I am concerned that there could be a conflict of interest relating to the prosecution for smaller offences. I can give a topical example—although I do not do it to make the Minister irate—which is the Scott inquiry. It is possible that a Minister would want to block a prosecution if going ahead with it would cause some embarrassment to his Department. Currently, the Scott inquiry is examining the failure of export control procedures, which is a matter for the DTI. If a Minister were to be embarrassed by such a failure within his Department, he might not authorise a prosecution under the Bill because he would not want to advertise that embarrassment.

7.15 pm

The possible conflict of interest is serious. It is certainly not hypothetical because it is exactly what Lord Justice Scott is examining. The matter needs explanation and some assurances from the Minister that prosecutions will not be stopped just to cover up embarrassments.

There is the question of how the Bill applies to Scotland. The only Law Officer in Scotland who can bring prosecutions is the Lord Advocate. He is responsible for any prosecutions for both the serious offences and the other minor offences that are scattered through the Bill. If, in England and Wales, all the decisions to prosecute rested with the Attorney-General, that would be equivalent to the position in Scotland. I do not understand why there is a different prosecuting system in England and Wales from the one in Scotland.

These are probing amendments, but they raise substantial points that are worthy of consideration and answers from the Minister. Clearly, the Secretary of State will be responsible for securing Britain's compliance with the convention. There should not be any conflict of interest when it comes to prosecuting for offences.

Mr. Oppenheim

I understand the hon. Gentleman's concern and I have some sympathy with it. He made a fair point in saying that the Secretary of State would be both the regulating authority and the prosecuting authority. I hope that I can put the hon. Gentleman's mind at rest by saying that with large and significant cases, the Attorney-General in England and Wales or the Lord Advocate in Scotland will be involved. It is only with the relatively minor cases that the Secretary of State will make the ultimate decision on whether an offence is worth prosecution. I hope that that reassures the hon. Gentleman.

The position is fairly consistent with what happens in other areas. The Attorney-General really deals only with fairly major cases. He is not geared up to deal with all the minor cases. It would cause problems for the operation of the convention and the Act if we were to put all cases before the Attorney-General. It would clog up his office. If—to take the opposite end of the spectrum from the hon. Gentleman—it was thought that in certain cases the Secretary of State was taking action in a frivolous way, the courts would be the arbiter of that. Of course, the Secretary of State ultimately would be accountable to Parliament.

I hope that what I have said reassures the hon. Gentleman that the Secretary of State would not bring frivolous prosecutions for relatively minor offences. On the other hand, it is clear that the Attorney-General or the Lord Advocate would be involved in major offences. Therefore, I cannot imagine any cover-up in major cases because all such cases would be referred to the Law Offices.

Mr. Dalyell

I wish to draw the Minister's attention to the comments of the Royal Society of Chemistry, which has said that if the Department of Trade and Industry or the national authority were ever to have to confront a rogue agency—that is not a hypothetical question—it might need all the support and safeguards it could muster, including parliamentary protection. Presumably that parliamentary protection will not be a great problem under the legislation we are debating tonight. But such protection would be no bad thing under less apocalyptic circumstances, such as the Department of Trade and Industry merely seeking the assistance of other Departments or reminding them of their obligations under the convention. This could be a problem. While one does not expect frivolous prosecutions, it sometimes turns out that prosecutions are less well-founded than people acting in good faith once thought.

Mr. Oppenheim

I take on board what the hon. Gentleman says and, in the circumstances he has described, such prosecutions would be found out by the courts. I do not think that it would be sustainable for the President of the Board of Trade to go down that route too often, because ultimately he would be accountable to Parliament. Quite often prosecutions are started which are not considered to be frivolous, and presumably it should be open to the Secretary of State or the prosecuting authority to withdraw a prosecution when it becomes apparent that it has no real substance. I hope that that gives the hon. Gentleman some reassurance.

Mr. Cohen

I hear what the Minister says, and I have some sympathy with his point that the Attorney-General's Department would get clogged up if it had to deal with all the prosecutions. I understand that point, and I heard the assurances that he gave on the matter as well.

I am still concerned about the potential conflict of interest within the Department, despite the Minister's assurances, which I appreciate were important. I wonder if I could entice him further along the road in his assurances. Perhaps he could put on the record—although I know that he cannot bind any future Minister or any future Government to this—that any parliamentary question in this delicate area which relates to the role of Ministers in the prosecution of offences will receive a proper answer and will not be blocked, because I know that there is a procedure to block sensitive questions.

The public interest immunity certificate procedure is coming under scrutiny from Lord Justice Scott, and it may be that the procedure will change. But the fact that a PII certificate has been issued should not get in the way of answering a parliamentary question about the prosecution of offences under the convention. I know that the Minister cannot bind any future Government, but if he could give an assurance that he would like that to be the case, that would be another step forward and I would be happy to withdraw my amendment.

Mr. Oppenheim

I think that I can give the hon. Gentleman that assurance. First, it would be a matter of parliamentary accountability and scrutiny that, under those circumstances, such questions should be answered. The only example that I can think of where parts of questions may not be answered for such reasons is in cases where there is commercial confidentiality. But as the Minister responsible, I can give my assurance that we will do our absolute utmost to be as transparent as possible and to answer questions where it is reasonable and fair that we should do so without going outside the convention by breaching commercial confidentiality. I hope that that statement assures the hon. Gentleman.

Mr. Cohen

In the light of the Minister's further assurances, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 31 ordered to stand part of the Bill.

Forward to