Examination of Witnesses (Questions 75
- 79)
WEDNESDAY 20 MAY 2009
MR COLIN
NICHOLLS QC, PROFESSOR
CELIA WELLS
AND PROFESSOR
BOB SULLIVAN
Q75 Chairman: May I, first, welcome
all three of you. I know that you have played your role already
behind the scenes in getting this legislation into a draft form.
Is there anything any of you would like to say by way of introduction?
Mr Nicholls: No, I think not;
we have got a list of questions.
Chairman: We have just allocated them
round the Members of the Committee. Shall we start? The first
question is whether it is an improvement on the 2003 Bill and
the draft law, and, perhaps particularly, how does it compare
with legislation in other countries. Lord Anderson, you wanted
to ask that.
Q76 Lord Anderson of Swansea: Only
this: we have gone through this exercise before; there was a great
deal of preparation on the 2003 draft Bill and a great deal of
learned debate, which may or may not have been wasted. Do you
believe that lessons have been learnt in respect of why that Bill
failed, and is the current draft, in your judgment, an improvement
both on the brave attempt in 2003 and the current law, and the
first time we looked, perhaps, at how it compares with the similar
laws in other jurisdictions? So have lessons been learnt and is
it an improvement?
Mr Nicholls: Most certainly, I
think, lessons have been learned. We have to realise that the
old law was a patchwork of legislation which was designed to deal
with specific issues. From time to time things were added, and
finally the Anti-Terrorism Crime and Security Act. So there was
this patchwork and it had got to be remedied in some way. There
was the consultation process that led to the 2003 Bill. What was
wrong with that Bill, which was clearly pointed out by the Joint
Committee, was that it was far too complex, and amongst the problems
there were the civil law concepts. This is a criminal matter and
is something that needs to be clearly understood by the people
who have got to comply with the law. The great thing is that even
between the consultation process this time and the report this
time there has been a great sifting out to get to the simple issues.
My personal view is that this Bill has resolved a lot of problems.
It has got rid of the civil law concepts, it has got down to something
nice and simple. The old common law talked about no rules of honesty
and integrity. What we have now is this concept of impropriety,
and impropriety is divided up into three different areas: good
faith, etc, etc, which can cope with different situations. So
we have got an advance on the old common law. There were not really
problems with the old common law about no rules of honesty and
integrity, and we have got down to something simple. So I feel
very much that this is a great improvement. The other thing that
comes from looking at this in a simple way is this: that we have
the general offences here and then we have the separate foreign
public officials offence. What comes from that is this: that when
you look at the general offences, what you have for a jury is
an issue as to whether conduct was improper. It is a jury issue
as to whether it was improper. When you look at the foreign public
officials offence, what you find is that Parliament has already
decided what is improper. If you pay money to a foreign public
official, in certain circumstances, that is ipso facto
improper and it has been decided for you. So if we look at corruption
as a whole now (because one of, perhaps, the disadvantages of
this Bill is it is only concerned with bribery), what we have
got is these offences where a jury has to decide what is improper,
and then we have those offences where Parliament has already decided
what is improper. As I say it is doing so in respect of the foreign
public officials offence and it is also doing it in the old law,
for example, with the Honours (Prevention of Abuses) Act, the
sale of honours and the electoral offences, where Parliament says:
"If you do this, this is improper and you commit an offence".
So I think it is a tremendous advance. If I am asked what criticism
I have of the Bill, at the moment, it is this: I am afraid I find
the drafting almost impossible. I was looking last evening at
clause 2, which is dealing with the recipient, and I really could
not work out what was being said about the test of good faith,
etc, etc. The drafting, I am afraid, as a criminal lawyer, as
opposed to a civil lawyer, in terms of case A, case B, case C;
people such as F, P, R and, later, when it comes to the corporate,
A, B and C, I find impossible. Maybe I am just not very good about
it, except that I notice that the senior partners of Herbert Smith
were having problems on this issue. So I would ask that the drafting
of this Bill be reconsidered. I started to do the first two clauses
myself but, I am afraid, time ran out and there was a lot left
over at the end, and I could not do it. I am sorry that is rather
a long answer.
Q77 Lord Anderson of Swansea: Just
a little rider on that: if you, with all your own experience in
the field, from a criminal law perspective, found it lacking and
you started to have a shot at a redraft—presumably you are
prepared to send to the Committee the fruit of your reconsideration?
Mr Nicholls: Yes, I was going
to say certainly I will.
Q78 Lord Thomas: I regret to say
that an awful lot of the criminal legislation that has been dumped
on Parliament recently has contained this type of case A, B, C,
and F and D, and I find it equally as confusing as Mr Nicholls.
I wonder if I could refer you further to question 2, because you
were also asked: what have we learnt from foreign experience?
What question 2 is all about is obtaining advice and guidance
from the authorities as to what is or is not subject to the offences
in this Bill. You will be aware, as you have some slight connection
with the Independent Commission against Corruption in Hong King,
that that organisation is prepared to give advice to a firm who
is seeking to find out whether a course of conduct would be acceptable.
Similarly, in America, we refer, in the note that you have seen,
to the US Foreign Corrupt Practices Act 1977, where there is a
procedure for an individual or business to query whether their
intended actions would be lawful. I would be interested to know,
either from Mr Nicholls or anybody else, whether that is considered
to be a gap in this particular Bill. Can we not learn from these
foreign jurisdictions that we should have a body or a mechanism
whereby people can check that paying money to X in a foreign country
or paying money within this country is a lawful action?
Mr Nicholls: I think part of the
problem with the drafting is that it is trying to pin, in every
particular, what is corruption. I think you will add to the levels
of prolixity if you have a set of exemplary situations by way
of guidance as well. If you had a more cursory yet, in some ways,
more clear way of drafting, then guidance examples might be more
helpful, I think. The attempt here has been to try and pin the
essence of impropriety down in some very prolix language.
Q79 Lord Thomas: I think you are
missing my point. It is not so much that the Bill should contain
the guidance but that, first of all, the Bill should contain something
about written guidance or have a mechanism whereby people can
seek advice, as happens in America and as happens in Hong Kong.
That is the point I am making, not that the Bill should set up
the guidance.
Mr Nicholls: I am sorry. I wonder
what—and it is a question rather than a contribution—is
the legal status of that guidance once it is given? Does it, in
any sense, count as a barrier against subsequent prosecution?
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