Mr.
Grieve: There is another issue that only
occurred to me as I read the clause again. The clause makes it clear
that it applies to a person who occupies a position, not somebody who
occupied a position. Will the Solicitor-General comment on that? As it
is drafted, the clause creates the interesting consequence that it
would apply
to a person who was still in employment as an employee, but if he abused
his position of trust after he had ceased to occupy that position he
would not be caught by it. Is that what the Government
intended?
The
Solicitor-General: It is an interesting proposition. A
person can occupy a position where they owe a duty that goes beyond the
performance of a job. A contract that is entered into that obliges a
person to have duties of confidentiality, perhaps, can go well beyond
the time when that employment ceases. The duty may, however, still
arise. The person entered into the duty at the beginning of the
employment and it exists indefinitely. Therefore a person may still
occupy a position in which there is a legitimate expectation. That may
well, by virtue of a contract and the agreement that the employee
entered into voluntarily, go beyond redundancy or the point when he
leaves the
post.
Mr.
Heath: I found the last point raised by the hon. Member
for Beaconsfield interesting and disturbing because it seems to me that
my amendment would have been better if it had required the omission of
the words “occupies a
position in which he is
expected” instead
of merely the words “is expected” so that the clause
would have described someone simply as having a duty to safeguard the
relevant interests. That is something that we may need to explore again
on
Report. I
entirely respect the Solicitor-General’s argument, but I am a
little alarmed by the paucity of examples of matters that fall outside
the concept of a duty, whether that is narrowly defined, in relation to
the fiduciary duty—we have already had an explanation about
that—or viewed as a wide, expandable and mutable definition and
nevertheless coming within the definition of expectation. This is one
of the rare occasions when I can criticise the Law Commission, because
its report also fails to deal with the matter. It baldly says that
there may be cases and that it will be for the court to determine them
and for the prosecution to demonstrate its case, but it gives no
examples of what those instances might be, and why they would be of
such import as to require a redefinition of what is a stand-alone
offence in the provision. Someone would be required to have done
nothing else besides being subject to the ill-defined expectation and,
in that context, to have acted in the dishonest way
specified. I
am still concerned, although as I said at the beginning I do not think
that if the clause is not amended grave injustices will result.
However, there will be an ambiguity in the law, which will be
susceptible to argument, and could have the reverse effect to the one
intended by the Minister of tightening the legislation. It provides an
alternative legal argument, whereas a crisp and clear definition would
not enable such ambiguity to arise. I am interested in what the hon.
Member for Beaconsfield has to say, but if he intends to press his
amendment I am inclined still to support it. I am not yet persuaded,
despite my best intentions to be so, by what the Solicitor-General has
had to
say.
Mr.
Grieve: I have listened carefully to the Solicitor-General
and am mindful of the point that he has made, which was restated by the
Law Commission, that fiduciary
duties on their own may be too restrictive a definition
because of the nature of informal relationships.
That seems a valid point, which the Committee must consider. If we do
not succeed in considering it properly here, perhaps we need to return
to it on
Report. 12
noon I remain
troubled, however, and the last question that I asked, about what it
means to occupy a position and whether the wording covers
“occupied” as well as “occupies”, seems to
go to the heart of the issue. As the reply came back, I heard my hon.
Friend the Member for Torridge and West Devon say sotto voce exactly
what was coming into to my mind: the provision covers every breach of
confidence.
Let me give
an example that goes back to my childhood. In her memoirs, the
Queen’s nanny told some entirely innocuous, but nevertheless
revelatory stories about the time when she looked after the Queen. I
have no doubt that nannies who take their charges out, once those
charges are at toddler age, have a responsibility to safeguard them and
not to act against the financial interests of another person. Apart
from anything else, they should make sure that the shilling is not
dropped in the gutter, but actually used to pay for the ice cream,
although they are clearly unlikely to have responsibility for the
detailed finances of the person concerned. Given the
Solicitor-General’s comments, however, it seems to me that,
quite apart from a potential breach of confidence and a civil
liability, the way in which the clause is drafted means that such a
person is potentially subject to a criminal responsibility. That may be
what the Government intend. It may be what the Law Commission intended.
However, reluctant though I am to enter into a difference with the Law
Commission, which is a body of learned people, I wonder whether it has
fully thought through the consequences of the way in which clause 4 is
drafted.
It is
possible that the tabloid press have missed the point and that clause 4
is the dynamite that the Government intend to use to bring to an end to
the frequent breaches of confidence that appear in the tabloid press.
That might be a good thing. I often think that people who publish the
kind of books that I have described are acting in a dubious way and in
accordance with a dubious morality, but it has never crossed my mind
that that was an appropriate area for criminal sanctions, yet that is
what the Bill would introduce. Of course, such a case would have to get
past a jury, and juries, with their robust viewpoint, may decide that
they are not happy with this developing area of the law and simply
refuse to convict people, as we have seen them do on other occasions.
Indeed, those of us who have been barristers have come across juries
who have refused to convict a person on clear evidence that an offence
has been committed, because their own moral sense tells them that the
person was in some way entitled to commit the offence. On the whole,
those of us who draft law should try to avoid provoking such problems,
but, in the clause, we are creating them.
My amendment
might well be too restrictive, but in the absence of anything else, I
am inclined to press it to a vote, if only to register with the
Solicitor-General the desire—I do not suppose that we will carry
the vote—that the Government go away and think again. I am
prepared to help, to co-operate and, if a better formula is produced,
to go along with it. As things stand, however, I have an
underlying anxiety that the clause is too widely drafted and covers a
vast range of behaviour, some of which should undoubtedly be subject to
criminal sanction, but some of which should not. We are in danger of
creating a catch-all provision that will be a nightmare of judicial
interpretation and which could ultimately help to bring the law into
disrepute, which is undesirable. [Interruption.]
The Solicitor-General wishes to intervene, so I shall give way to
him. The
Solicitor-General: I was going to
respond.
Mr.
Grieve: I am grateful. In that case, I shall bring my
remarks to a close. I shall listen to what the Solicitor-General has to
say and then perhaps say one or two words about whether I shall
withdraw my amendment or press it to a
Division.
The
Solicitor-General: I am grateful to the hon. Gentleman for
the way in which he put things, so let me see whether I can assist
him.
I have two
points to make. First, I fear that if we go along with the approach
that the hon. Gentleman suggests and restrict the ambit of the clause,
we shall leave elderly people as the Institute of Legacy Management and
the north of England trading standards group suggested. Both
organisations were concerned that elderly people were being exposed, in
effect, to fraud by relatives or workers who would not be covered by
the ambit of a fiduciary relationship. It is for the hon. Gentleman to
decide whether he feels that it is right to leave elderly people
exposed in this way. A number of people who feel that they should not
be left exposed in this way have made representations to the
Government. Secondly,
I fear that the hon. Gentleman exaggerates the effect that he expects
the clause to have far too much. He exaggerated a small point about
whether we should use the word “occupies” rather than
“occupied” into a massive point. Let me read out the
provision, which refers to a person
who (a)
“occupies a financial position in which he is expected to
safeguard, or not to act against, the financial interests of another
person, (b)
Dishonestly abuses that position,
and (c) Intends, by
means of the abuse of that
position— (i)
to make a gain for himself or another,
or (ii) to cause loss
to another”. That
drafting provides several additional safeguards, so we do not have the
massive expansion of imprecision that the hon. Gentleman fears. Many of
the examples to which he referred of breaches of confidentiality and so
on would properly be the subject of civil law, and the civil court is
where they would normally be dealt with. There may well be
circumstances in which a person can generally have fulfilled all the
conditions of the clause: that is, they occupy a position in which they
are expected to safeguard another’s interests, they act
dishonesty and they intend by means of abuse of that
position—that is the additional safeguard included in the
clause—to gain thereby.
Clause 4 is therefore limited
to cases where individuals have a position of some kind of trust. A
person who is no longer in such a position—for example someone
who no longer occupies the position of trustee—is not caught by
the clause, provided that
the abuse takes place subsequently. One can abuse a position only if one
has one or if one has created one by the nature of one’s
contractual relationships. There are safeguards in the
provision. I hope that
the hon. Gentleman will feel, on reading the clause as a whole, that
those safeguards will be sufficient to ensure that we are not creating
some sort of, as he put it, catch-all. We do not wish to create one. We
want to provide the basis on which to deal with circumstances that
arise not only in fiduciary relationships, but in the sorts of cases
that the Institute of Legacy Management and the north of England
trading standards group have identified—cases in which all of us
would want the elderly to be safeguarded.
Mr.
Grieve: I certainly want the elderly to be safeguarded and
I do not wish to restrict the scope of the clause to prevent that from
happening. Clearly, the elderly and the vulnerable are categories of
person whom I would assume were specifically in mind when the clause
was drafted. I have
another question. I shall allow the Solicitor-General to intervene
again if necessary, because we have time to debate this matter fully.
He read out Lord Justice Millet’s judgment. A carer employed by
a person who is vulnerable might be given their credit or bank card and
their PIN and might try to extract money from a cash machine; leaving
aside the question of theft if they appropriate some of that money for
their own use rather than giving it to or using it for the benefit of
the person concerned, that carer has a fiduciary duty. I would find it
difficult, on the basis of Lord Justice Millet’s cogent
definition, to say that such a relationship did not exist.
Fiduciary, by its nature, means
a relationship of trust wherein someone is imparted information that
can be abused. That is why I am by no means certain that if we were to
restrict the definition to a fiduciary one, all the people whom the
Solicitor-General thinks would thereby be excluded would in fact drop
out of the picture. If he thinks that I am wrong about that, I would be
happy to hear why, because, on the basis of the judgment that he quoted
and the definition that he read out, it seems to me that such people
would in all probability be
caught.
The
Solicitor-General: Lord Justice Millett said
that “The
principal is entitled to the single-minded loyalty of his
fiduciary.” Is the hon.
Gentleman suggesting that a fiduciary duty is owed by a worker who
comes on behalf of meals on wheels to supply food to an elderly lady at
lunch time and in the evening, and who takes advantage of that
position? Clearly there is an expectation that that worker should not
take advantage of her position, but does she owe a fiduciary duty and a
single-minded loyalty? I think not. Do relatives who come in from time
to time to help have a legal fiduciary relationship? The hon. Gentleman
may well be able to argue in court that such a relationship exists, but
I suspect that the lawyer for the other side would argue strongly that
it does not, and if the latter argument were accepted, the hon.
Gentleman would leave that elderly lady exposed to such
behaviour.
Mr.
Grieve: I understand what the Solicitor-General is saying,
but it seems to me that he is referring to a completely separate
category of offence. It frequently happens that individuals take
advantage of a degree of trust and to abuse that trust in order to
steal from another person. A carer who is given access to a house and
who, instead of preparing or serving the meal, steals money from the
mantelpiece commits theft. I had assumed that fraud by abuse of
position was designed to deal with individuals who were entrusted with
information that could be dishonestly abused to make a gain or to cause
loss. The obvious example is the one I gave, where one gives
one’s PIN and card to someone, saying, “Could you please
go down to the bank and extract the money?” Such an individual
is in a completely different category, because the point at which one
has given them all the elements to carry out a financial transaction on
one’s behalf is the point at which those elements can be abused.
That is a different category from the one in which carers
fall. I would be
surprised if the Solicitor-General was really saying that clause 4 was
intended to try to provide an easy way of prosecuting individuals such
as informal carers who gain access to property and then steal it. There
is plenty in the armoury of the criminal law to deal with that
problem.
| 
