Joint Committee on The Draft Corruption Bill Minutes of Evidence

Examination of Witness (Questions 580-598)


4 JUNE 2003

  Q580  Lord Campbell-Savours: If the DPP, him or herself, was the filter, would it be in order for him or her to consult with the Commission for Standards and Privileges?

  Lord Goldsmith: I would have to consider that.

  Q581  Lord Campbell-Savours: Could you let us know?

  Lord Goldsmith: Certainly.

  Q582  Lord Campbell-Savours: The Clerk of the House referred to the enactment of section 13 of the Defamation Act of 1996, which he described as "a serious encroachment on the principles underlying the Bill of Rights". Do you think it should go?

  Lord Goldsmith: I really do think that is outside my remit, if I may say so. That was passed, as we all know, in particular circumstances.

  Q583  Lord Campbell-Savours: Mr Hamilton relied on it.

  Lord Goldsmith: It did not do Mr Hamilton any good in the end.

  Q584  Lord Campbell-Savours: Do you think it should go?

  Lord Goldsmith: As it happens, I do not particularly think that it should go. I think that the circumstances in which someone who believes that he has been defamed by a newspaper and is precluded from clearing his name because of a rule which prevented reliance upon what had taken place in Parliament is capable of causing injustice, and that is obviously what Parliament thought because it passed section 13 and it believed that was an injustice. I share that view but that is entirely a policy question.

  Q585  Vera Baird: I am sorry if my question has been asked. Part of the purpose, as I understood it that clause 17 required your consent as the Attorney General, I had thought was in relation to proceedings against a Member of Parliament which were intended to be non-delegable on the basis that these strange factors which an ordinary prosecutor would not understand about parliamentary organisation you would know about as a parliamentarian and I had thought that that was primarily why the consent was to be you and not delegated. Do you have any comment on that? Is that a good thing or is it a bad thing, because you are, after all, part of government and might be seen internationally to make decisions on a partisan basis, although of course you never would?

  Lord Goldsmith: I am personally quite relaxed about who the consent should be from. I think there are two questions. One is should there be a filter at all. I think a compelling case was made out that because the nature of the allegation that was made was potentially very, very serious, particularly to people in public life, the damage could be irreparable, it is perfectly true that both the Director of Public Prosecutions and I are capable of stopping prosecutions but it takes time to get to that point and the damage may have been done, particularly if an allegation or private prosecution were brought perhaps at the time of an election or something of that sort. The first question is should there be any filter at all? I think a compelling case has been made. Who should provide that consent? At the moment there are a variety of Acts which are not at all consistent as to whether it is an Attorney General consent and when it is a DPP consent. It seems to depend to some extent on what the feeling was at the particular time the Act was passed. The argument in favour of it being the Attorney General rather than the DPP, which came from the Nicholls Committee, was precisely the point that you made, that the Attorney General would be able to bring parliamentary knowledge and experience to the decision and also the question of the delegation down to a lower prosecutor than the DPP. The argument against it, and the only point I feel very strongly about, is I do not mind which it is so long as there is no suggestion that the reason, if it be not the Attorney General is because the Attorney-General cannot be trusted to exercise this. I know that successive Attorney Generals have felt—as I do—very, very strongly when it comes to making prosecuting decisions and public interest that we are not acting as part of the government. Collective responsibility is not a part of it.

  Q586  Chairman: I want to know whether this suggestion is practicable. Should the Attorney General take a decision that he should move the Commons without a debate but leave would be given so there would be some parliamentary control of it? Do you think that is practicable? We would have to put it in Standing Orders of course.

  Lord Goldsmith: It seems very difficult.

  Q587  Chairman: It seems to me it would raise a lot of difficulties. I would like to know whether you think it would be practicable to do it in that way.

  Lord Goldsmith: Two practical problems spring to mind immediately. I have not given this any more thought than just sitting here now. First of all, this would require the law to be changed so that clause 12 was in place but subject to a resolution of the House. That potentially it seems to me could be argued to do more damage to freedom of speech than good because it would be holding a "sword of Damocles" over the head of particular Members, either those with unpopular views or those from minority parties. That could be potentially a very worrying sign. The second practical problem is if I am moving a resolution in the House, presumably the House would want to know what the evidence is upon which the charge is based.

  Chairman: That is where the practicality really hits it.

  Q588  Vera Baird: Could I follow up very briefly. This is something I genuinely do not know. You drew a distinction, I think, in part of your last answer between the stage of prosecution and the stage of investigation and made clear that in terms of a person in public office the mere investigation can be very damaging indeed. Is your consent usually sought at the outset of an investigation so that you would have some filtering influence over that or do you become involved much later in the day?

  Lord Goldsmith: I expressed myself badly. I should have made it clear that it is the fact of starting the prosecution that would do the damage. If there is no filter it would be open to someone to go to a magistrate and start a prosecution then and there.

  Q589  Chairman: Which happens in some states of the United States we are told where there is no filter.

  Lord Goldsmith: No, my consent would not be sought until the end of the process, not at the beginning.

  Q590  Vera Baird: So there would not be any filter on the investigation and the potential danger that that would offer to your public figure, as you say, particularly at election time or at a time of a reshuffle?

  Lord Goldsmith: I think that the danger is much more of this being published For a police officer to interview somebody does not do the same damage at all as a statement that someone being prosecuted and is appearing in such and such a Magistrates Court tomorrow.

  Q591  Vera Baird: Say if a Parliamentarian is arrested?

  Lord Goldsmith: One would want to move fairly quickly to resolve that.

  Q592  Mr Stinchcombe: Can I take you back to the suggestion that you have now twice floated, that the moral turpitude you had in mind might be embraced by some concept of a breach of duty and whether that would be sufficient? If I take the example of an office holder in a local authority, that person's functions would be embraced by powers and duties, discretions and duties, should we be happy just to have the breach of duty covered by a definition of corruption or should we look to the person who is influenced to exercise a discretion in a way which he might not have otherwise exercised a discretion?

  Lord Goldsmith: I was simply saying that of the variety of potential changes that there could be it seemed to me that the breach of duty was one that was worth looking at. I have certainly not attempted to draft or re-draft the Bill or anything of the sort. Secondly, no, I do not think there is a problem because a breach of duty encompasses somebody using a power or a discretion that they have been given inconsistently with the way in which they are supposed to exercise it.

  Q593  Chairman: Are there any other questions on the parliamentary scene while we are on it? Unless there is anything that you would like to say about something we have not covered I would like to finish with one matter which was raised very recently, that is the exception provided by clauses 15 and 16 about the intelligence services. I have two questions: One, is it necessary to have such an Article and is it a sufficient provision to prevent abuse? Secondly, perhaps in a way more important, have you considered whether to adopt clauses 15 and 16 would be contrary to our obligations under the OECD Convention and under the Council of Europe's Criminal Law Convention? Firstly, do we practically need clauses 15 and 16? Secondly, if we adopted it would it be contrary to the OECD Convention and the Council of Europe Convention?

  Lord Goldsmith: First of all I have to say I have not personally considered the second question. I have no doubt that others have but I have not, so I cannot answer that, I am afraid. As far as the first is concerned, it does seem to me highly desirable that there should be provision in relation to the security services. The fact of the matter is that security services are required from time to time to act in a way which would contravene what the law is in order to protect national security and to protect the people of the country. I think it is much more desirable that that should be within a framework within which Parliament has authorised with checks and balances and set out clearly rather than leaving it to the discretion of the prosecutor at the end of the day simply to say whether it was appropriate or not. This follows the model which we have, of course, in the Intelligence Services Act in relation to other matters which I believe do enable the agencies to operate effectively but subject to the checks and balances which are necessary.

  Q594  Lord Campbell-Savours: Can I take you to the actual language. As I understand it we are now talking about authorised operations. What happens in an authorised operation if a particular officer carries out an act, a corrupt act, which is part of the authorised operation, he has done it as part of his work during the course of an authorised operation, is it possible that that person might be shielded from prosecution if the particular act of corruption in which they were involved if it fell under the general heading of authorisation but was not actually authorised? It is very hard to give an example without talking about, let us say, agents and how they operate in a field. One can envisage circumstances where the operation is authorised where perhaps they do something under the heading of that authorised operation which is not what was intended and which was corrupt and for which perhaps they should be prosecuted.

  Lord Goldsmith: That turns very much, as it does under the Intelligence Services Act, on the form and the precision with which authorisations are given. No doubt those will depend on operational matters, operational questions and considerations which are not for me but for others as to what you can predict is going to be necessary in order for some intelligence officer to be able to do what is necessary in the performance of his duty. He needs the protection of knowing that if he acts in accordance with the framework which is set out he is not going to be subject to prosecution. I suppose the public also need the assurance of knowing that acts which are done have been through a process which involves checks and balances and authorisations through people who are accountable to the public through Parliament.

  Q595  Lord Campbell-Savours: Yes. The actual act that he carries out might not be what was intended when the authorisation was granted, it might be an act which should be the subject of prosecution. Can you not envisage circumstances—I am just putting the proposition to you—where some might say, we should be prosecuting this man however we cannot because he falls under the section which states that if the operation is authorised he is exempt.

  Lord Goldsmith: It is not the operation which is authorised, it is the act or omission which is authorised. Clause 15(2) says: "The person does not commit a corruption offence if the act or omission done or made is authorised to be done or made by virtue of an authorisation given by the Secretary of State." The act falls within the terms of the authorisation and not whether or not it has been done in the course of an operation, which is authorised. That is why I said that a lot will turn on the precision or otherwise of the authorisation, recognising it is a practical fact in advance of certain things taking place. No doubt it is difficult to predict precisely what will be necessary. These are not questions for me, these are questions for those who are responsible for the security services, I am just looking at it from a point of view of prosecuting.

  Q596  Mr Shepherd: A lot of their work is subcontracted and they become designated and therefore the code of secrecy is very profound in that system. I am not criticising, I am just noting it, for the lawful authorities. For the local authorities to know whether an act has been done in accordance with the provisions of this exemption is quite difficult, and for society to ensure that there is a check and balance.

  Lord Goldsmith: This is a very general statement. We have moved to a situation of greater authorisation and regulation of what intelligence services do as a result of legislation which has been passed. This fits in with it and includes parliamentary accountability through particular mechanisms.

  Q597  Mr Shepherd: There is no public interest on this for bringing it to the attention of the proper authorities that something may be improper. I do not mean to put this beyond the circumstances of your attendance here.

  Lord Goldsmith: Something might well be brought to my attention, whether or not it falls within the exemption if the exemption is passed.

  Q598  Chairman: Attorney General, thank you very much for coming, we are very grateful for your help on these questions. If we have anything else we would like to ask you we can do it in writing.

  Lord Goldsmith: I would be happy to try and answer it.

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