Examination of Witness (Questions 420-439)|
2 JUNE 2003
Q420 Baroness Whitaker: Under our
notion of corruption do we not have an idea of somebody gaining
a private advantage at the expense of a public benefit?
Professor Pieth: Yes.
Q421 Baroness Whitaker: That is not
always there in trading in influence, as you say, it could be
lobbying. It is a bit irritating.
Professor Pieth: I feel a bit
uneasy saying something definite here because this is really overstepping
my role here. This would be talking about domestic issues and
I do not have enough knowledge of the situation in the UK to really
help you there.
Chairman: Another topic which is a sensitive
topic which has raised much interest is the question of changing
the present position on parliamentary privilege, the Bill of Rights,
Article 9 and all of that. Dr Turner, would you like to take that?
Q422 Dr Turner: Thank you, my Lord
Chairman. You will have seen clause 12 of the draft Bill removes
the protection of parliamentary privilege from bringing anything
that is said in Parliament into court as evidence. The European
Court of Human Rights holds that this privilege does not necessarily
impede a sensible trial and that the protection is not necessarily
incompatible with prosecuting a case. Do you think that the abolition
of privilege in cases of corruption is an essential prerequisite
for conforming with the OECD Convention?
Professor Pieth: From the OECD's
point of view I think it would be enough if you had a system to
simply lift parliamentary privilege. For instance, in a concrete
case, a vote in Parliament to lift privilege in a specific case,
that would be an alternative possibility. You are not required
to have an automatic lifting of the parliamentary privilege. My
point is it is more a question of good policy. If 12 is the reason
why you have to have the consent of the legal officer, 17
Q423 Chairman: We will come on to
that in a moment.
Professor Pieth: I am trying to
make the link between the two.
Q424 Chairman: How far is the concept
of parliamentary privilege applicable and enforced in other OECD
member states? How far does the question that we are facing here
arise in other OECD countries?
Professor Pieth: I think you have
to have a concept to lift it in case a serious crime has been
committed and an investigation is under way. You are not forced
to automatically lift it by law at the beginning of such an investigation
if there are allegations, you can actually go through a vote in
Parliament. That would be the standards you would find, for instance,
in European countries in most places.
Q425 Dr Turner: So all other OECD
members have got, if you like, a graded lifting of privilege?
Professor Pieth: Yes. You also
have different types of crime. For instance, if it is a case of
libel you have to have much more leeway as a Member of Parliament,
so there would be a big hesitance there, whereas if it is a real
serious crime, dishonest crime in British terms, it is much easier
obviously. In our view corruption is something that we consider
as serious so there has to be an established procedure to lift
it, but not necessarily by law. Upon initiating those proceedings
you could actually go through a vote by the body to lift it.
Q426 Dr Turner: Do you think that
clause 12 as it is currently drafted is an unnecessarily blunt
and open-ended provision?
Professor Pieth: I am rather hesitant
here because it goes quite far beyond what the OECD is talking
about. I am saying there are alternatives to it and please do
not make this a reason for the consent because then we would comment
Q427 Chairman: It is probably not
possible to make an absolute generalisation here as to whether
everybody should abolish the sort of parliamentary privilege they
have because there are so many grades of protection in different
parliamentary systems. It has been suggested to us that some restriction
might be justified. Following on from Dr Turner's questions, do
you feel that the present proposal goes too far, that it is going
to damage freedom of speech in Parliament?
Professor Pieth: I am a bit hesitant
to voice an opinion on that specific point here because this is
so much embedded in a discourse which I am not part of. There
are obvious alternatives here, other people do it differently.
You do not have to do this by international requirements but if
you feel happy with it then that is your own
Q428 Chairman: If we left Article
9 of the Bill of Rights on parliamentary privilege alone and left
it as it stands now, for that reason would we be in breach of
any aspect of the OECD Convention?
Professor Pieth: I must ask you
to repeat the question, I am sorry.
Q429 Chairman: If we did not change
our law, if we maintained to full effect the current rule about
parliamentary privilege in relation to corruption, would that
mean we would not be implementing our obligations under your OECD
Professor Pieth: The problem is
I would then have to know more about the way you run your parliamentary
privilege and whether there are possibilities of overriding it.
If there are not then I would feel uneasy.
Q430 Chairman: If the privilege in
practice was virtually absolute?
Professor Pieth: Then I would
have difficulties. However, if the chamber in which the person
is participating could lift the privilege I would say you would
have no difficulty with the OECD.
Q431 Mr Garnier: I was just going
to ask Professor Pieth, although you do not want to become engaged
in domestic political discourse about it, I wonder if you can
give me one or two examples of the sort of evidence that you would
find useful to present in a prosecution but which you could not
do so without the lifting of British parliamentary privilege?
Perhaps you had not thought about that, in which case I will not
press the question.
Professor Pieth: I have not really
thought about that.
Mr Garnier: I will not take that further.
Q432 Lord Campbell-Savours: If you
leave it to a vote of Parliament to lift, parliamentarians are
political and the way the whips work and the decisions that are
taken are not necessarily in the public interest when there are
political issues at stake because of reputations, so in many ways
that would not work and I am sure it would not work in the United
Kingdom. I just put that to you.
Professor Pieth: I think you are
right there but you have different interests to balance and protecting
the Members of Parliament from vexatious accusations is obviously
an interest that also has to be taken seriously. Again, I am working
my way through from clause 17 because the argument for clause
17 has been vexatious accusations. I can see the point particularly
with MPs. Give them a chance but do not argue for clause 17 byI
am sorry if I have a one-track mind here.
Chairman: I rather diverted you from
the Attorney General but perhaps we should have a look at him
Q433 Lord Waddington: I understand
that concern has been expressed that under the draft Bill the
consent of the Attorney General would be required for the bringing
of a prosecution and it has been suggested that might be in breach
of Article 5 of the Convention. Do you think that people would
be happier if while the consent of the Attorney was not required,
the consent of the Crown Prosecution Service, for instance, was
required? While you are dealing with that issue perhaps we could
wrap up in the same question that so far as other jurisdictions
are concerned, are there some restrictions on the bringing of
prosecutions and where there are such restrictions are they thought
to be less likely to offend against Article 5 than what is proposed
in this Bill?
Professor Pieth: Starting with
your first point, the Crown Prosecution Service has a similar
role, if not exactly the same, as the prosecution service, for
instance, on the continent. In some places you have an investigating
magistrate, like in France, or a prosecutor. They take the police
evidence and take a decision on a professional basis as to whether
there is enough evidence to run the case and whether it is worthwhile
to run the case or it is such a petty case it would simply be
a waste of energy. Those kinds of decisions are in compliance.
That is what we are talking about when we talk about professional
motives as opposed to political and economic motives. What we
are trying to rule out is that somebody says, "This is a
good friend of ours, Mr Suharto you cannot do that to us",
that will expose him, or the other situation where they say, "We
are gaining a lot of jobs out of this contract, we cannot expose
this contract, so we will stay the investigation". I am not
saying this is being done, I am just saying Article 5 wants to
make sure it is not done and clause 17 invites you to do it, or
raises questions at least. We have to see exactly what is the
role of the Attorney General: does he have any kind of political
discretion, why would he be necessary beyond the CPS? The answer
to your question is I believe if the CPS took the decision it
would be perfectly in line with the Convention. On your next point,
there are other countries which
Q434 Chairman: Forgive me, but just
before we go on, it is of course a very important part of our
system, not the CPS itself but the head of the Crown Prosecution
Service is directly answerable to the Attorney General and the
Attorney General is answerable to Parliament for what the head
of the Crown Prosecution Service does. Does that affect your answer
which has been given in relation to the Crown Prosecution Service
quite generally if it was confined to the head of the Crown Prosecution
Service who has a direct line through to the Attorney and a direct
line through to Parliament?
Professor Pieth: The method I
am applying here is trying to see what has happened in other cases
in other countries. For instance, on the continent if you have
a hierarchical prosecution service taking the decisions then you
have a head of the prosecution service who is allowed to take
the ultimate decision on a professional basis, and if that is
the case I would see no difficulty. The question is to what extent
the head of the Crown Prosecution Service is a political appointee
Q435 Lord Carlisle of Bucklow: He
does not change necessarily with the government, he is responsible
to the Attorney General.
Professor Pieth: His responsibility,
I would assume, is very much professional, he is not necessarily
responsible for political decisions.
Q436 Lord Carlisle of Bucklow: The
Attorney General is also the head of the legal system, you might
Professor Pieth: In a way I am
trying to ping-pong this question back to you because we would
have to know more about the exact situation.
Q437 Chairman: The suggestion here
is at the moment the Attorney General has to give consent. The
argument is that somebody should act as a filter here and the
Attorney General as the head of the Bar, the head of the advisory
government service and so on, is just as good a filter as anybody
else. If you merely make the head of the Crown Prosecution Service
fulfil that role you are not achieving anything because he is
answerable to the Attorney General who is answerable to Parliament.
This is the argumentI am not saying I think it is rightthat
if you want to have somebody totally independent of Parliament
Professor Pieth: That is one of
the points you would find in a discussion, for instance, of the
Italian system or the German system where you always have a filter,
you have a separation of power inbuilt between the prosecution
service and the government. That is the safety net we have got
there. We would have to have a closer look at how independent
Chairman: We were told that in some American
states there is no filter at all, a prosecution for corruption
can be brought by anybody, it is only the judge who can throw
Mr Garnier: And the prosecutor may well
Q438 Baroness Whitaker: Presumably
the problem with the Attorney General in the rest of the world
is partly a problem of perception because he is known to be a
government minister and the Director of Public Prosecutions has
no such association, no matter his chain of command. In your view,
would it be the same as the DPP being the filter if it were the
Director of the Serious Fraud Office perhaps who is more closely
associated with the specialised investigations?
Professor Pieth: The question
would be is there a possibility that either the Attorney General
or the DPP or the minister ordering the closing of an investigation,
for instance, of a specific person. Take France and the very delicate
investigations we have just been seeing, there is the protection
installed by the juge d'instruction being absolutely autonomous.
The same situation applies in Milan, one of the securities inbuilt
there is their autonomy. The same thing applies with the German
prosecutor, there is no way of stopping him. You can tell him
to do his work in general but you cannot stop him. I think that
should be your criterion to find the right person.
Q439 Baroness Whitaker: It is the
Professor Pieth: The Swiss situation
is equally that, that there is no filter at all. The prosecutors
are elected, be it by the people or by parliamentMonsieur
Bertossa in Geneva was not controllableand, therefore,
they are changed quite a lot. It is essential that if you want
to make this instrument really work you have to be very careful
to block out political influence, even in the abstract. We are
not talking about concrete matters.