Joint Committee on The Draft Corruption Bill Minutes of Evidence

Examination of Witnesses (Questions 760-772)


11 JUNE 2003

  Q760  Lord Campbell-Savours: Yes, and one might pay the other four not to bid.

  Mr Berkeley: That sort of refusal to supply, and so on, is an ingredient of anti-trust offences, competition offences.

  Q761  Chairman: But why is it not also corrupt or capable of being corrupt?

  Mr Berkeley: I think that the point I am making is this. The Bill already has a very heavy jurisprudential load to bear. It is trying to simplify and bring together a very wide activity. If you put on top of it something which is more properly—at least in our view—part of competition law, then I think that you are overloading the donkey.

  Mr Cridland: I would not want to leave any impression on this issue that we had some philosophical problem with the line of questioning or one or two of the suggestions. Frankly, these are not issues which we covered in our own evidence and we are giving an initial response. Andrew is entirely right that the objective of the CBI membership has been to clarify the legislation. We have been trying to work with government and therefore we have not said, "Put this on one side and start again". We have tried to narrow down our list of concerns to a practical list, which we hoped you would entertain. This is, if you like, a bit off-line in that respect. We are happy to consult further, but I do think that the thrust of our membership consultation has been that they want the law modernised, clarified, simplified, and that the trend of the questioning is to add a considerable extra construct. I do not think that we have a philosophical problem with that necessarily. We would come back to the fact that member companies would see that dealt with in other principal areas of law, but we are happy to consult further if it is a matter of particular interest.

  Q762  Chairman: I am not sure I understand the full import of the word "modernise" as opposed to "change", but if you work out your concept of what corruption is really trying to deal with, and you come to the view that there is a wider range of activity falling within your concept of corruption, is it really an answer to say, "You can deal with this in other aspects of the law"—when you could probably also deal with the particular matters that are included in the Corruption Bill?

  Mr Cridland: We would be quite pleased to consider that point. We have not consulted our members specifically on it. I think that it raises all sorts of issues.

  Q763  Chairman: I can well understand the argument that you should not go on duplicating crimes to cover the same act, or that if you have a perfectly adequate system—anti-trust law or some other civil law—it may be enough. However, one needs to be really sure that the agent-principal test is not too narrow.

  Mr Cridland: I respect that point.

  Q764  Mr Stinchcombe: Can I test that a stage further, just a short distance? If we were to take your evidence and conclude that we could simplify this Bill, first by importing some word such as "improper" and thereafter by deleting the confinements of the agent-principal relationship—so all hinged on whether there was an improper advantage that was conferred—and, by a side wind thereby, create the possibility that what might already be a wrong under competition law and anti-trust law might thereby also be included as an offence of corruption, would that side wind effect be something that you would fear? Would it be positively damaging, or would it be an acceptable risk for having a simplified anti-corruption Bill in the first place?

  Mr Cridland: I think that we would need to be convinced that it did not unnecessarily duplicate existing law, or that it produced inconsistencies of application. That is something that our membership might well be concerned about, but we would look at it on its merits. I do not think there is a philosophical hang-up on this.

  Q765  Mr Stinchcombe: Do you have the same concerns of duplication about the economic torts, as Mr Berkeley mentioned? They have a fairly abstract content. As I understand matters, at the moment it is not unlawful in any way under civil or criminal law for, say, one principal to offer another principal £30 million to induce breach of contract of employment. Given that it is of uncertain remit, do you have exactly the same concerns that we should not duplicate the economic torts also in this legislation?

  Mr Cridland: I think that the point is more about the interrelationship with anti-trust and competition law specifically, although clearly you are asking us questions on which we have not consulted and we would need to check where the business community was.

  Q766  Mr Stinchcombe: But you are broadly concerned about duplication and you are also concerned that we should not unnecessarily legislate for something that is already covered by the competition law.

  Mr Cridland: Absolutely.

  Mr Stinchcombe: That is the principal concern.

  Q767  Lord Carlisle of Bucklow: If you asked the Law Commission, they would say, would they not, that their fundamental purpose is the codification of the criminal law? If that is so, is it possible and right to codify one aspect without looking at other similar aspects at the same time?

  Mr Cridland: You have raised a question we have not previously considered, but which we would be happy to consider. In the work we have done on this Bill that issue has not been considered by the CBI.

  Q768  Lord Carlisle of Bucklow: So you would say that you have no considered view on that?

  Mr Cridland: We have no mandate. I can express an opinion. I have done, but I do not have a formal policy because the CBI has not ---

  Q769  Lord Carlisle of Bucklow: Would you like to see general codification of the criminal law?

  Mr Cridland: It is a very big question.

  Q770  Baroness Whitaker: Would it be helpful to business and industry if fraud were also contained in an anti-corruption Bill, because they often occur at the same time? I think that there is no substantive offence of fraud, and this could be an opportunity. Would it be helpful to roll them together?

  Mr Berkeley: I think that I have seen a Law Commission study on fraud. If I may take that as a policy question rather than a legal one, it is hard on management if they have too much to absorb by way of legislation. From a management point of view, therefore, I would say that a pragmatic, bit-by-bit approach is certainly easier and may even be more effective.

  Q771  Baroness Whitaker: It is easier to have separate chunks than one coherent piece?

  Mr Berkeley: Yes, because it would need more work from legal departments, from legal advisers, from management to make the necessary decisions, and then from the people who are concerned with writing codes of conduct. It would be quite a burden on companies in doing that—and on the CBI. They would probably have to increase their staff!

  Q772  Chairman: I suppose it might be said that fraud is a very much wider concept than corruption, and indeed the number of prosecutions for fraud is infinitely greater than the number of prosecutions for corruption. The effect of fraud in the civil law, of course, is fairly extensive. It is a possibility to bring them all together but, as you say, there are some problems. There seem to be no other questions. This has been a most valuable meeting and we are very grateful to you for the help you have given us. If, on reflection, you think that there are things on which you would like to elaborate further, or any other matters you think we have not touched on that we should have touched on, we would very much appreciate a note from you to let us know. It has been very valuable.

  Mr Cridland: Thank you for the opportunity.

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