Examination of Witnesses (Questions 420
- 432)
WEDNESDAY 10 JUNE 2009
MR KEIR
STARMER, MR
RICHARD ALDERMAN
AND DETECTIVE
CHIEF SUPERINTENDENT
STEVE HEAD
Q420 Baroness Whitaker: How could
it better do it?
Mr Starmer: It would mean a broadening
of some of the definitions in clause five to capture a wider range
of organisations.
Q421 Baroness Whitaker: Perhaps we
could ask for a memorandum with some more thoughts about that.
Mr Starmer: I can certainly provide
some more on that.
Q422 Baroness Whitaker: Do the other
two witnesses have any further points?
Mr Alderman: I certainly agree
with what Mr Starmer has said. We want to make sure that all the
entities that could be used by corporates to facilitate bribery
are captured in this way.
Q423 Baroness Whitaker: You think
that they are not in the current text?
Mr Alderman: There are some issues
which Mr Starmer has raised. We are very happy to work with him
on a memorandum for the Committee.
Q424 Lord Anderson of Swansea: In
so extending the bodies covered for the purpose of clause 5(1)
and therefore responding to the plea of Professor Mark Pieth,
the chairman of the OECD Working Group, are we in danger of being
on our own beyond other countries, in going beyond the strict
letter of the OECD Convention and therefore putting our own companies
at a competitive disadvantage?
Mr Starmer: If we are going to
produce anything further in writing, I think the sensible thing
would be to take that on board and give our best explanation on
that question, if that is acceptable.
Chairman: Let us consider for
a moment the position of the Attorney, of whom we have two former
ones here. There is of course the possibility of legislation on
this subject.
Q425 Lord Goodhart: Can I ask whether
you think the arrangements made under this Bill are satisfactory?
Mr Starmer: The arrangements under
this Bill are satisfactory in that consent rests, broadly speaking,
with myself and Mr Alderman. That is acceptable and we are content
with that. There is an anomaly in relation to assisting or encouraging
which just needs to be tidied up in a convenient way because the
combination of this Act and the Serious Crime Act of 2007 is that
the Attorney retains consent in respect of assisting or encouraging
if the acts are abroad, and that is something which you may want
to raise with the Attorney General's Office. It is not a practical
difficulty, it is not something which presents a great hurdle;
it is just something that needs to be tidied up in this Bill.
Q426 Lord Goodhart: Would it be more
appropriate that the Attorney General's responsibilities under
section 53 of the Serious Crime Act should be limited to cases
of national interest?
Mr Starmer: That would certainly
tidy up that difficulty.
Chairman: Lord Lyell, have we stolen
this point from you?
Lord Lyell of Markyate: In my
view, we are not in a tidying up area at all here; we are in an
area of absolutely fundamental constitutional decision. The law
officers of the Crown are not ordinary ministers. They appointed
by the Prime Minister and they can be sacked by the Prime Minister,
but they cannot be told what to do by the Prime Minister. They
are appointed like a High Court judge under the Great Seal, and
Lord Mayhew and I both have two copies of that and, by tradition,
and it is a very deep tradition as you will know, they guard that
independence very, very carefully. Lord Goldsmith has come under
a lot of attack and it is suggested—I do not think fairly
but we have not seen the hottest ground of attack which deals
with the Iraq War, that has been kept from us by Government—as
though he had not acted as pro-Chevalier with perfect independence
and integrity, and I am certainly not accusing him of that, but
the fundamental question here is parliamentary accountability.
Prosecuting, like almost every aspect of this life, is something
in which the Government of the day has responsibility. We have
had a system going back into history, but certainly since the
Law Officers Acts in the 19th century where the system of superintending
which exists at the moment comes in, whereby the law officers
can give directions to the DPP. Personally I know of no occasion
when they have done so, but equally I know that that creative
tension with two people, both of whom apply the highest standards
but have to deal very different prosecuting decisions, has led
to very careful and constructive discussions. In five years as
Attorney (and this is where it comes from most hotly but to a
limited extent from five years as Solicitor) I always reached
agreement, and I think every law officer in modern times has always
reached agreement with the Attorney of the day, but that does
not mean that the system is a dead letter; it is not in any way.
The problem with handing it over to the DPP is that he or she
is not directly responsible to Parliament and that accountability
with such a key part of our system of democratic government would
go. Is that understood or what is your answer to that?
Chairman: Lord Lyell, I think that really
is something that is a comment rather than a question. Is there
a specific question that you would like our witnesses to answer?
Q427 Lord Lyell of Markyate: I will
put the question in this way: yes, there is a good deal of comment
in it but what the directors are saying they are happy with in
this Bill is that that should be dismantled, and if it were going
to be dismantled at all "director" at the moment—and
perhaps you could confirm this—means the CPS and it means
the SFO. If something is assigned to the Director of Public Prosecutions
it can actually, subject of course to the will of the director
of the day, be carried out by any member of the Crown Prosecution
Service, any crown prosecutor. I personally would stick with the
present system but would you agree that if it is to move at all
it should be the DPP personally?
Mr Starmer: No, I am afraid I
would not agree with that. I think the question I was asked was
whether I was content with clause 10 and the answer to that is
yes, I am, I think that is an appropriate way of dealing with
these offences and puts in place the essential safeguards, so
I am afraid I would not agree.
Chairman: I think there are going
to be other matters that concern the position of the Attorney
and I am not sure how far we can pursue it in relation to this
Bill.
Lord Lyell of Markyate: Fair enough,
I thought it was useful to put that.
Chairman: I want very quickly to go on
to Mr Borrow and indeed Mr Djanogly with an introduction to the
parliamentary aspects of this because our next witnesses are going
to be the Clerks and I wonder whether you would like to deal with
that first of all, Mr Borrow, and question 11?
Q428 Mr Borrow: Clause 15 removes
parliamentary privilege in relation to the words or conduct of
an MP or Peer who is a defendant or co-defendant in bribery proceedings,
but privilege is not removed in relation to the words or conduct
of other Members or witnesses. I would be grateful, perhaps initially
from Mr Head, if he could explain whether parliamentary privilege
poses a genuine challenge to the police, and then if the prosecutors
could come in afterwards, and the prosecutors in their attempt
to charge and bring to book those who are corrupt?
Detective Chief Superintendent Head:
I can tell you from my own experience that it has never posed
a problem for me in my investigations. However, I can check that
out and get back to you in terms of policing in general and see
if any of my colleagues have ever had an example specifically
if you like, and I can get back to you. In terms of my own experience
I cannot recall any occasion.
Q429 Mr Djanogly: Just to go to a
slightly more complex level, because it seems as though the application
of this is not going to be quite so straightforward as may seem
at first instance, there are two examples that we have been given:
firstly, that a prosecutor could rely on the words spoken by an
accused Member in select committee (or other) proceedings, but
the accused Member could not rely on words spoken by a witness
or non-accused Member during the same proceedings, even if they
were exculpatory; or a witness before a select committee (against
whom privilege could not in any circumstances be removed) would
benefit from a greater level of protection than Members against
whom privilege could be removed if they are accused or co-accused.
Is this an issue that you have given any thought to? Is this relevant?
Could I also say that of course we are only talking about the
law of bribery here. This will not apply to any other criminal
offences and do you think, if we are going to have it apply to
bribery, it should apply to other things as well, fraud comes
to mind?
Detective Chief Superintendent Head:
I rather fall back on my previous answer in the sense that I have
no actual experience myself of where parliamentary privilege has
caused a problem with investigations, and that relates to the
issue of bribery. If we want to take that further and look at
whether it should apply across the board, that is a whole different
question that I had not really prepared for in terms of this forum.
I can come back in the sense of whether you feel there would be
some use to it in particular in relation to fraud, which is away
from this Bill and may be a whole different debate that we do
not necessarily want to get into today. I am very happy to come
back to you with some thoughts on that.
Q430 Mr Djanogly: By extension should
this clause be taken out and looked at in a different context?
Is it right for this Bill?
Detective Chief Superintendent Head:
It is in the Bill. It does not cause me any problems within the
Bill. My point is that in actual fact whether it is in or it is
not in does not necessarily cause me, as an investigator, from
my experience any problems one way or another. What I will do,
if it is okay with you Chairman, is take the liberty of checking
with a couple of the other units who deal with this very specifically.
Bearing in mind it relates to bribery, I will just take the liberty
of doing that. It should be very quick because it is very specific
and I think you will find that the answer will be the same.
Q431 Chairman: Have either of the
Directors got anything to say on question 12, human rights or
other legal concerns associated with this change in the law?
Mr Alderman: On the part of the
Serious Fraud Office, Lord Chairman, it is not an issue that we
have ever had to address.
Mr Starmer: Nor on behalf of the
CPS, although I think in relation to both questions 11 and 12
greater clarity about parliamentary privilege, what precisely
it covers and what the limits are, would be of the greatest benefit
to all concerned and in particular the prosecutors and investigators;
I can see difficulties there.
Earl of Onslow: On this particular
question can I ask our Clerk to drop a line to the Clerk of the
Joint Select Committee on Human Rights upon which I sit drawing
their attention to this point or have you already done it?
Chairman: We have already done
so.
Earl of Onslow: Well done!
Q432 Chairman: Is there anything
else that any of the three of you would like to say to us before
I bring this part of the session to a close? It has been very
helpful and there is more information to come which I am perfectly
certain will be extremely interesting for us but for the moment?
Mr Starmer: No thank you.
Lord Goodhart: Could I just raise
one small correction. When we were discussing question 10 about
the role of the Attorney General I referred to the Attorney General
taking decisions on the ground of national interest. That should
of course have been national security.
Chairman: Thank you very much indeed.
That has really been extremely helpful and we are very grateful
to all three of you for what you have had to say to us. I will
now give everybody perhaps two minutes' break while we bring in
our next witnesses. Thank you so much.
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