Criminal Law: Misappropriation of taxpayer funds/embezzlement  

 Documents  retrieved at https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/742188/Managing_Public_Money__MPM__2018.pdf

Annex 1.1 The Comptroller and Auditor General

7 http://www.civilservice.gov.uk/about/values

8 The NAO website address is http://www.nao.org.uk

9 See Audit Practice Note 10 of the Audit Practices Board on the FRC website at Http://www.frc.org.uk

8

2 Use of Public Funds

This chapter explains the process for parliamentary authorisation of public resources.

Parliament consents in principle to the use of public funds through legislation to

enable specified policies. It then approves use of public resources to carry out those

policies year by year by approving Estimates. Only rarely can lesser authority suffice.

At the close of each financial year, parliament expects a clear account of the use of

the public funds it has authorised. Parliament expects the Treasury to oversee the

operation of these controls. The PAC may investigate specific issues further.

2.1 Conditions for use of public funds

2.1.1 Ministers have very broad powers to control and direct their departments. In general,

they may do anything that legislation does not prohibit or limit, including using common law

powers to administer their operations or continue business as usual.

2.1.2 Ministers also need parliamentary authority for use of public funds before each year’s

expenditure can take place. The full list of requirements is set out in box 2.1.

Box 2.1: requirements for use of public funds

• budget cover in the collectively agreed multi-year budgets

• with a few exceptions1

, parliamentary authorisation for each year’s drawdown of funds through

an Estimate, which is then approved as a Supply and Appropriation Act (see section 2.2)

• adequate Treasury consents (see section 2.3)

• assurance that the proposed expenditure is regular and proper (section 2.4)

• sufficient specific legal powers - though see section 2.5 for some limited exceptions

2.1.3 The Treasury runs the control process because parliament expects the Treasury to control

public expenditure as part of fiscal policy. The primary means through which the Treasury

controls public expenditure is multi-year budgets, agreed collectively at spending reviews. The

Consolidated Budgeting Guidance sets out the rules for their use. (See also chapter 4).

2.2 Using the Estimate

2.2.1 The requirements in box 2.1 are to some extent interrelated. The accounting officer of a

department (see also chapter 3) is responsible for ensuring that:

• the Estimate(s) presented to parliament for the department’s annual expenditure

(consolidating its ALBs) are within the statutory powers and within the

government’s expenditure plans; and

• use of resources is within the ambit of the vote and consistent with the Estimate(s)-

1 See section 5.3

9

2 Use of Public Funds

and must answer to parliament for stewardship of these responsibilities.

2.3 Treasury consents

2.3.1 Departments also need Treasury consent before undertaking expenditure or making

commitments which could lead to expenditure (see annex 2.1). Usually the Treasury agrees

some general approvals for each department subject to delegated limits and/or exclusions.

2.3.2 Some common approaches to setting delegations are shown in box 2.2 and are discussed

further in annex 2.2. It is good practice to review delegations from time to time to make sure

that they remain up to date and appropriate. Delegations can be tightened or loosened at

reviews, depending on experience.

Box 2.2: examples of approaches to delegated authorities

• objective criteria for exceptions requiring specific Treasury scrutiny or approval

• a sampling mechanism to allow specimen cases to be examined

• a lower limit above which certain kinds of projects must achieve specific consent

2.3.3 In turn departments should agree with each of their arm’s length bodies (ALBs - the

public sector organisations they sponsor or finance) a similar set of delegations appropriate to

their business2 (see also chapter 7).

2.3.4 There is an important category of expenditure commitments for which the Treasury

cannot delegate responsibility. It is transactions which set precedents, are novel, contentious or

could cause repercussions elsewhere in the public sector. Box 2.3 gives examples. Treasury

consent to such transactions should always be obtained before proceeding, even if the amounts

in question lie within the delegated limits.

Box 2.3: examples of transactions requiring explicit Treasury consent

• extra statutory payments similar to but outside statutory schemes

• ephemeral ex gratia payment schemes, eg payments to compensate for official errors

• special severance payments, eg compromise agreements in excess of contractual commitments

• non-standard payments in kind

• unusual financial transactions, eg imposing lasting commitments or using tax avoidance

• unusual schemes or policies using novel techniques

2.3.5 It is improper for a public sector organisation to spend or make commitments outside the

agreed delegations. The Treasury may subsequently agree to give retrospective consent, but

only if the expenditure in question would have been agreed if permission had been sought at

the right time.

2.3.6 Sometimes legislation calls for explicit Treasury consent, eg for large or critical projects.

There are also Whitehall wide controls on key progress points for the very largest projects.3 In

2 Delegations to ALBs should never be greater than the delegated limits agreed between the Treasury and the sponsor department.

3 Through the Major Projects Authority, [http://www.cabinetoffice.gov.uk/content/major-projects-authority], using powers delegated by the Treasury

10

2 Use of Public Funds

such cases it is unlawful to proceed without Treasury consent - and Treasury consent cannot be

given retrospectively.

2.4 Regularity and propriety

2.4.1 The concepts of regularity and propriety, fundamental to the right use of public funds,

are set out in box 2.4. The term regularity and propriety is often used to convey the idea of

probity and ethics in the use of public funds – that is, delivering public sector values in the

round, encompassing the qualities summarised in box 1.1. Supporting this concept are the

Seven Principles of Public Life - the Nolan principles4 - which apply to the public sector at large.

In striving to meet these standards, central government departments should give a lead to the

partners with which they work.

Box 2.4: regularity and propriety

Regularity: compliant with the relevant legislation (including EU legislation), delegated authorities

and following the guidance in this document.

P ropriety: meeting high standards of public conduct, including robust governance and the relevant

parliamentary expectations, especially transparency.

2.4.2 Each departmental accounting officer should make sure that ministers in his or her

department appreciate:

• the importance of operating with regularity and propriety; and

• the need for efficiency, economy, effectiveness and prudence in the administration

of public resources, to secure value for public money5

.

2.4.3 Should a minister seek a course of action which the accounting officer cannot reconcile

with any aspect of these requirements, he or she should seek instructions in writing from the

minister before proceeding (see chapter 3).

2.4.4 Should departments need to resolve an issue about regularity or propriety, they should

consult the relevant Treasury spending team. Similarly, ALBs should consult their sponsor

departments about such issues, and the department concerned may in turn consult the Treasury.

2.4.5 Neither improper nor irregular expenditure achieves the standards that parliament

expects. So any such expenditure must be noted in the department’s annual report and

accounts. If the discrepancy is material it can result in a qualification to the accounts. When

any expenditure of this kind comes to light, it should be drawn to the attention of both the NAO

and the Treasury. The immediate follow up action is to identify the source of any systematic

problems so that there is no recurrence. The PAC may also call the accounting officer to explain

the matter at a public hearing.

2.5 Securing adequate legal authority

2.5.1 Parliament usually authorises spending on a specific policy or service by approving

bespoke legislation setting out in some detail how it should work. It is not normally acceptable

to use a royal charter as an alternative to primary legislation, for this approach robs parliament

4 http://www.public-standards.gov.uk/

5 A more detailed description of value for money is at annex 4.4

11

2 Use of Public Funds

of its expectations for control and accountability. Departments should ensure that both they

and their ALBs have adequate legal cover for any specific actions they undertake.

2.5.2 The Treasury takes this requirement seriously. It is fundamental to the trust and

understanding between the government and parliament on which management of the public

finances is founded. In the Concordat of 1932 (see annex 2.3), the Treasury undertook that

departments would not spend without adequate legal authority.

2.5.3 There are some general exceptions. These kinds of expenditure do not require specific

legislation in order to avoid burdening parliamentary time:

• routine matters covered by common law (the main examples are in box 2.5);

• a very limited range of Consolidated Fund Standing Services (see section 5.3);

• projects or services which are modest or temporary (see box 2.6)

Box 2.5: expenditure which may rely on a Supply and Appropriation Act

• routine administration costs: employment costs, rent, cleaning etc

• lease agreements, eg for photocopiers, lifts

• contractual obligations to purchase goods or services (eg where single year contracts might be

bad value)

• expenditure using prerogative powers such as defence of the realm and international treaty

obligations

2.5.4 In all the three cases in paragraph 2.5.3, departments may rely on the sole authority of a

Supply and Appropriation Act (the culmination of the Estimates process) without the need for

specific legal authority, provided that the other conditions in box 2.1 are met.

Box 2.6: modest or temporary expenditure which may rely on a Supply and

Appropriation Act

either services or initiatives lasting no more than two years, eg a pilot study or one off intervention

or expenditure of no more than £1.75m a year (amount adjusted from time to time)

provided that there is no specific legislation covering these matters before parliament and existing

statutory restrictions are respected.

These conditions are demanding. Treasury consent is required before they may be relied on.

2.6 New services

2.6.1 When ministers decide on a new activity, all the conditions in box 2.1 must be met before

it can begin. In practical terms this means that most significant new policies which are intended

to persist require specific primary legislation.

2.6.2 Sometimes ministers want to start early on a new policy which is intended to continue

but whose enabling legislation has not yet secured royal assent. It may be possible to make

limited preparation for delivery of the new service before royal assent, but to do so it will usually

be necessary to consider borrowing from the Contingencies Fund (see annex 2.4). Access to this

Fund is controlled by the Treasury, subject to the conditions in box 2.7. Specific Treasury

consent is always required.

12

2 Use of Public Funds

Box 2.7: conditions for access to the contingencies fund (see also annex 2.5)

• the proposed expenditure must be urgent and in the public interest, ie with wider benefits to

outweigh the convention of awaiting parliamentary authority (political imperative is not enough)

• the relevant bill must have successfully passed second reading in the House of Commons

• the legislation must be certain, or virtually certain, to pass into law with no substantive change

in the near future, and usually within the financial year

• the department responsible must explain clearly to parliament what is to take place, why, and by

when matters should be placed on a normal footing.

Annex 2.1 Treasury approval of legislation

Annex 2.2 Delegated authorities

Annex 2.3 The PAC concordat of 1932

Annex 2.4 New services