Joint Committee on The Draft Corruption Bill Minutes of Evidence

Examination of Witness (Questions 539-559)


4 JUNE 2003

  Q539  Chairman: Attorney General, we are very grateful to you for coming. We have a number of questions that we have not asked the Minister about but we will start with something we have covered a little bit. There are two major criticisms that we have heard from a number of witnesses. The first is that as a matter of drafting it is all much too complicated and particularly Clause 5 of the Bill is going to be difficult for jurors and difficult for lawyers to advise their clients on and virtually incomprehensible to businessmen. That is one suggestion, that we ought to be looking for a much clearer and more precise definition. Lord Falconer has indicated that if we come up with something on the basis of the evidence we have heard and the views of the Committee that was sufficient for purpose in objecting to the Bill he would certainly look at redrafting it. The second thing is that obviously the word "corruptly" in itself has been used and may cause difficulty or it may not, but the suggestion is that in the definition of "corruption" here there is no indication of "dishonestly", "improperly" or, to use the continental word, "unduly", and that perhaps as a matter of definition to stick to the concept of principal and agent is in itself not a very good idea. It is complicated, it may allow some people to escape and perhaps it would be easier, as the Director of Public Prosecutions said, for prosecutors were we to focus on the passing of the bribe rather than on the agent/principal relationship. Those are just three of the main broad topics that you may wish to comment on, and then after that we can go on to specific questions.

  Lord Goldsmith: I am happy to try to comment on them. If I may, I want to say that I am very pleased to give whatever assistance I can to the Committee. It is plainly very important, the work the Committee is doing, scrutinising this, and that will be very advantageous. I would emphasise that I am not the Bill Minister. It is not my policy which is here at issue. I hope that I can help the Committee from two perspectives: first of all, as the senior prosecutor responsible for the prosecuting agencies who will have to deal with the Bill I therefore have a real interest in how it will operate in that respect; and I suppose also to some extent as the senior law officer. Obviously, you have been asking Lord Falconer policy questions as to what should and should not be within the ambit of the offence and that is probably not an area I can help you a great deal with.

  Q540  Chairman: May I say that we are of course aware that it is not your Bill. The reason I have put the three topics all lumped together is so that you can pick and choose which is more appropriate for you to comment on.

  Lord Goldsmith: It is an unusual invitation to have from you.

  Q541  Chairman: Lawyers cannot usually resist talking about everything so we may get an answer to all of them.

  Lord Goldsmith: I would say this if I may in the hope that it is of some help. The first question seems to me to be, is it helpful to have a new Corruption Bill? Looking at this really from the point of view of a prosecutor, I think there is a strong case for saying it is helpful to have a new Corruption Bill. The existing law is drawn from a multiplicity of sources, some of which derived from decisions made in a position of emergency or urgency at the time. It gives rise to difficulties. There was a recent case, for example, called Natji, which failed as a prosecution because in the end on quite a fine distinction between who was public and who was not public, it was said that the offence was brought under the wrong Act. That is not satisfactory when the conduct that was being alleged at least was plainly something which ought to have been tested fully by the courts. That it is desirable to have a Corruption Bill I am persuaded of. Secondly, the big issue in relation to the Bill is, does one try to define "corrupt" or "corruptly" at all? I am impressed by what the Law Commission said in relation to that, that, unlike the concept of dishonesty, there does appear to be more variance in the view as to what is "corrupt" and what is "corruptly". There is a difference in judicial thinking. There seem to be two, possibly three, streams of judicial thought as to what is meant by "corrupt" and how you therefore direct juries, and the fact that there was not unanimity of view or anything like it amongst the respondents in the Law Commission's consultation certainly seems to me to give rise to quite a strong case for saying that one ought to attempt to define it. The third question to which that then gives rise is, does this Bill do it? I am interested to hear Lord Falconer also say that the Department want to consider very carefully any suggestions that there are for improvement, including in particular any to come from this Committee, and I look forward to seeing what they say in relation to that. My principal interest is, is it going to be possible to prosecute whilst the Bill is plainly complicated in certain areas? I actually do not think that with judicial assistance juries will have that much difficulty deciding because they will be directed to what questions they have to deal with. They will not be asked to read the Act and work it out for themselves. That seems to me to be important, although of course I have read what both the Director of the Serious Fraud Office and the Director of Public Prosecutions have written, both of whom are directors for whom I am responsible, and of course it is very important to take account of their concerns as to what might happen if the judicial assistance is not perhaps as good as it should be.

  Q542  Chairman: What do you feel about Sir David Calvert-Smith's comment about focusing on the passing of the bribe rather than on the agent/principal relationship?

  Lord Goldsmith: I pay the greatest respect to everything that he says. As I understand it, in a sense both are a part of what is intended by the offence. There is the conferring of the advantage, although one has to focus upon what payment, if it is payment (that is going to be in the classic case) has been made or is intended to be made, so there will be a focus on that, but also what are the purposes for which it is provided. What one does not see in the Bill, as it were, spelt out, although it seems to me to be implicit in it, is the concept, in the classic case, of payment being made with an intention or hope that there will be a breach of duty, and so one has two bits of it, the breach of duty and the payment to procure that as a reward for it having been done, which is implicit in the Bill.

  Q543  Lord Waddington: I was most interested to hear you use that phrase "breach of duty" because of course one does not find the words "breach of duty" in the Bill. This is really what is worrying us most of all—that the definition in the Bill is not easy certainly for a layman to understand, and both the Law Commission, and, for instance, Mr Wardle of the SFO, said that although, strictly speaking, corruption had never been looked at as an offence of dishonesty, it is extremely difficult to think of cases where there is not an element of dishonesty. If that is so, is it not time we faced the facts and did the commonsense thing and put something in the Bill along the lines that there had to be a breach of duty or there had to be dishonesty or there had to be some moral turpitude? Would there be any difficulty in doing that? It seems to me it would make life a lot easier.

  Lord Goldsmith: From the policy point of view the Department would want to be satisfied that what one is left with in the Bill covers the offences that they intend to cover and that is obviously critical from the point of view of prosecuting those offences. However, anything which improves the Bill and makes it easier to apply I would welcome. That is not to say that I think it is unworkable as it stands but I welcome any change there is. Following up Lord Waddington's point particularly in relation to dishonesty, of course the most recent Court of Appeal pronouncement says that dishonesty is not part of the offence of corruption.

  Q544  Lord Waddington: Let us go for breach of duty then, would you be happy for that to be added?

  Lord Goldsmith: I do not want to be drawn into whether or not that is going to cover all the things that are required. It certainly seems to me, if I may say so, something that is well worth considering by this Committee to consider and it may be for others to consider too, whether that is a key to it. I think it is implicit, as it happens, when one reads the charging section and the exceptions together, and I think that is what binds them together, but perhaps that is the way I am reading it.

  Q545  Chairman: Lord Falconer explained to us why the Department decided they would not follow the South African pattern of having very precise charges so that people ought to know more clearly than under the more general statements that we have. He explained that was considered and felt not to be the appropriate way to deal with it.

  Lord Goldsmith: Yes, and Sir David Calvert-Smith I think told you that from his point of view he thought it was right, on balance, to go for something which was a global offence rather than trying to enumerate all the possible exceptions. I entirely understand that from a prosecutor's point of view, otherwise you are always being faced with something that does not quite fit into one of the categories which has been set out.

  Chairman: Everyone is going to be interested to know whether there is something now in the new offence which was not corruption before or whether something which was corruption before has now dropped out. One thing has clearly changed and that is the position of Members of Parliament. Perhaps we could ask you about that and you may or may not wish to comment on it. Dr Turner would like to pursue this.

  Q546  Dr Turner: Clause 12 seeks to set aside parliamentary privilege. Do you think that there is any merit in actually defining parliamentary privilege as was recommended by the Joint Committee on Parliamentary Privilege, so that parliamentarians know when they say things in Parliament they are liable to be used either against them or other parties?

  Lord Goldsmith: I am always in favour of as much certainty as one can achieve for everybody so I would not oppose anything which clarified things, from whomsoever it is. As I understand it, this is a Bill dealing with corruption and it is necessary to deal with the question of whether that is going to cover Members of Parliament or people who have something to do with Parliament in certain circumstances and what it is necessary to do to deal with the inadmissibility of things which happen in Parliament in order that those offences can be prosecuted. I think that is all that clause 12 is dealing with, very important though it is, and I can understand that this is not the Bill to go further and pick up the rest of the recommendations which the Joint Committee on Parliamentary Privilege made.

  Q547  Dr Turner: Can you think of any occasions in which MPs or peers have escaped prosecution for corruption because of the provisions of Article 9 of the Bill of Rights?

  Lord Goldsmith: None of course have been referred to me, I certainly cannot identify any. I can consider hypothetical cases where Article 9 would preclude or at least make more difficult a particular prosecution if those were the circumstances. If the allegation was that a Member of Parliament or a peer had taken a bribe in order to vote a particular way, speak a particular way, ask a particular question, then the presence of Article 9 would cause considerable difficulties in being able to prosecute that as an offence because one would not be able to bring into court the fact that this had actually happened in Parliament.

  Q548  Dr Turner: I can remember, we can all I am sure remember, some notorious examples of precisely those things happening in a previous recent Parliament and I think they in fact did not face a prosecution.

  Lord Goldsmith: The allegations did not result, if I am thinking of the same ones, in any criminal prosecution. They did result as a consequence of the amendment of the Defamation Act in civil proceedings.

  Q549  Dr Turner: So do you think there is any requirement in this Act to set some clear limits on the degree to which parliamentary privilege is defined, or defined in terms so as to understand for what circumstances it will be set aside for the purposes of prosecution. As it stands, it looks fairly sweeping and it has been suggested by some witnesses that it goes too far.

  Lord Goldsmith: I am very happy to try to respond to the question as to whether it goes too far. It seems to me relatively clear that where one has the ingredients of an offence which are otherwise made out, and clause 12 does not extend the offence of corruption in any way at all, it provides that no enactment (and that is principally Article 9, it may be exclusively Article 9) will stop you from producing material in the court that proves one of the ingredients of that offence, and that is all it does.

  Q550  Lord Campbell-Savours: Can I take you back. I spent 20 years in the House of Commons and I am quite worried about this section. Do you believe that an elected Member of Parliament has an absolute right to speak and be without fear of any pressure or being compromised in any way? Is that your view?

  Lord Goldsmith: I strongly believe in the freedom of speech in Parliament which has been an absolutely critical part of our freedoms, showing a spotlight on wrong-doing and ensuring there is a place where these things can be said, certainly.

  Q551  Lord Campbell-Savours: Looking at clause 12, can I quote you what the Clerk of the House said. He said: "The strong invitation of the passage is that the recommendation is intended only to relate to offences alleged to have been committed by Members, but, as drafted, clause 12 goes far wider than that. As already mentioned, it would enable evidence given by a person to a select committee to be called in question in court in support of the charge of corruption against that person. If a Member of Parliament had commented in a debate on an individual who was subsequently charged with corruption, the Member's speech would be inadmissible as evidence under clause 12 and"—which is where many of us get very worried—"a Member might be questioned about its meaning and the information on which it was based." So this is what the Clerk of the House of Commons has submitted to the Committee.

  Lord Goldsmith: I do not doubt at all that the Clerk has submitted that. My expression of disagreement was over the proposition that because a Member says in the House something about somebody else that that becomes evidence in a court of law. It seems to me it is not evidence at all. If I were to say that X had been corrupt, a police officer might come to me afterwards and say, "I understand you said this in a select committee. Can you tell me why you said that and what evidence you have," and that might lead him to a line of enquiry that might enable him to find other evidence, but he could not call me into court to say, "I think so-and-so is corrupt," that is irrelevant. The first point that was made in what was said seems to me to be important. Clause 12 does go further than simply dealing with a Member, I agree. It would cover a case where somebody comes before a committee such as this or another committee, who perhaps comes forward as an expert to come and tell the Committee that there is no a problem from a particular scientific process, or something of that sort, and has in fact been bribed to say the opposite of the truth. What would happen at the moment would be that the evidence that had been given to the select committee could not be brought into court to prove that this person had been corrupted into giving that false evidence. I would add that it is obviously a policy matter but I think you can argue very strongly that freedom of speech is actually enhanced by having a limited exception so that you can be satisfied that people who are speaking are speaking from the heart, honestly and genuinely, and not speaking because they have been paid secretly by some interested party to do so. That is a policy issue.

  Q552  Lord Campbell-Savours: But if a Member of Parliament has in mind when he or she speaks in the Chamber that words that he or she may use may be taken down and then be the basis on which they as Members, unconnected with a criminal offence, are used and they may be required to go into court and give the basis on which they made those statements in the House of Commons, surely, a Member with that in mind might decide, "I am not going to say anything at all," and in doing so their privilege has been restricted? I can think of the circumstances where in a particular case—because I often raised issues under privilege in a former incarnation—I would have had second thoughts about raising the issue in the Chamber for fear that I may subsequently become involved in protracted proceedings in the event that I did not have the full defence offered by Article 9, which to some extent is being eroded in those proposals.

  Lord Goldsmith: I do not want to pry at all but was the concern that you had that somebody might try and pursue defamation proceedings against you?

  Q553  Lord Campbell-Savours: No, just that I would not have wanted to have been wrapped up in the case in court.

  Lord Goldsmith: It is always dangerous to make sweeping statements without having considered every single circumstance and I would be very happy to consider them, but I do not see at the moment why a Member who is not himself or herself involved in a corrupt activity, by saying something in the House about it, unless that person is prepared to voluntarily be so, would be summoned into court in order to explain what has been said because a statement by somebody that X has been believed to be corrupt simply would not be evidence that could be used against them.

  Q554  Vera Baird: I was just going to pick up on what you said earlier about the availability of something said by a Member of Parliament to a police officer who might wish to investigate whether the Member of Parliament was prepared to make a statement about the issue outside Parliament or give him further leads. There is nothing to stop that from happening now, is there, even with parliamentary privilege intact, save for the Defamation Act?

  Lord Goldsmith: That is absolutely right, nothing at all.

  Q555  Vera Baird: If I may ask one further point. Granted that consideration for parliamentary privilege is waived in any way, they are unusual decisions for an ordinary prosecutor, as it were, to take, because factors come into the decision making process which are not really applicable anywhere else. Would there be anything to be said for having a filter rather than a carte blanche so that if a police officer thinking of investigating something needs to look into something said in the House of Commons, then automatically there is no privilege to stop it? Would there be any point in having a filter? I am thinking of the model of the application for a fresh trial in double jeopardy proceedings, which requires an application to you, first of all, to support that carrying on. Do you see any room for a filter of that kind to protect from the dangers Lord Campbell-Savours sees very clearly?

  Lord Goldsmith: As the Bill is drafted there is just such a filter because as the Bill is drafted no case for corruption could be brought without my consent.

  Q556  Chairman: Sir William MacKay told us of a distinction drawn in the United States which in its way is also a filter. The only matters which could be raised in the courts would be cases where something had been said which went to the making of the agreement to do something, the word used was compact, but the actual performance of the agreement which might involve something said or something done connected with parliamentary proceedings would not be within the jurisdiction of the court. The actual agreement to do it is distinct from the actual doing and would that not give, as the Americans have done, a form of protection which might be considered here? Have you considered this yourself? It is a case called Brewster.

  Lord Goldsmith: I read the memorandum and I found it very interesting to read. It seemed to me—and not having read on the other hand the underlying United States jurisprudence I may have got this wrong—in a sense they were not differing that much from what clause 12 is saying in concept, this sense which they have interpreted in their equivalent of Article 9 by saying, "Well, you do not impeach or question proceedings"—using the language of Article 9—"if what you are doing is not bringing those proceedings into question themselves but relying upon them to prove that an unlawful act has taken place. It is possible that our courts themselves might interpret Article 9 in that way. There is a case which is presently being considered by the Judicial Committee of the House of Lords which may assist in understanding what is the full ambit of Article 9. It is a different context, saying not that the things which happen in Parliament are themselves for some reason unlawful but there shall be no reason not to rely upon what happens as evidence if otherwise it is evidence in support of an offence. Otherwise it is not far from that concept.

  Chairman: It is not entirely clear how it would work in some situations, this distinction between compact and performance.

  Q557  Lord Campbell-Savours: I want to finish my final question. It is just that when I said that the Member might be questioned about its meaning and the information on which it was based, I meant in the courts. Are you saying that would not happen?

  Lord Goldsmith: I am finding it very hard to see—

  Q558  Lord Campbell-Savours: That is not what I am asking you, because that is what MPs will want to know.

  Lord Goldsmith: I am saying I am finding it very hard to see how it will happen if in the example you are giving what the MP is saying is, "I am now reporting something about which I have learnt or heard," because that is hearsay, that is opinion, it is not direct evidence of an offence having been committed.

  Q559  Lord Campbell-Savours: Are you aware of the case before the Health Select Committee at the moment that they are wrestling with?

  Lord Goldsmith: Which case is that?

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