Examination of Witnesses (Questions 540
- 553)
THURSDAY 11 JUNE 2009
MR JEREMY
CARVER, MR
MARK PYMAN,
MS SARAH
SEXTON AND
MR NICHOLAS
HILDYARD
Q540 Mr George: Excuse me, can I
finish my question and you can carry on afterwards? National security
interests, you do not pay much attention to that, do you?
Mr Carver: If national security
has a place in this it is not surely in an anti-bribery bill,
it is to be dealt with with the quite different processes that
legislation specific to national security has to deal with where
submissions can be properly tested in whatever appropriate in
camera arrangements are there. It is not something that should
feature and it flies a very nasty flag to the world to say that
we sanction bribery.
Q541 Chairman: Mr Hildyard, you wanted
to add something on this, I think.
Mr Hildyard: First of all, I should
say that we welcome the Attorney General's consent being removed,
that is a very necessary step. We are concerned about the Constitutional
Renewal Bill and some of the clauses there, but that is to be
dealt with at another time. There is a real concern that national
security can be invoked to get a government out of an embarrassing
situation, whether it is because it is causing a diplomatic ruckus
if a bribery prosecution goes forward or, indeed, whether it is
because a major industry may be economically affected.
Q542 Chairman: Is that what you are
saying happened in the BAE case?
Mr Hildyard: I would not want
to rerun the BAE case here. The security advice was never tested
in court. The Director of the Serious Fraud Office never saw the
security advice; he only had it second-hand. The ambassador, who
relayed it to him, as far as we know, never saw the security advice.
We do not know what the security advice was. The Parliamentary
Intelligence Committee never saw the security advice. What we
do know from the court proceedings is that whatever threat was
made, it was not imminent. Our position, and it has been confirmed—the
interpretation of the OECD Convention Article 5—in the OECD
Phase 2bis report, very much takes the same line that our
lawyers took, is that there is not a national security exemption
in Article 5 but it is a matter of customary international law
that a state can always invoke necessity in order to derogate
from an international obligation if doing so is the only way to
safeguard an essential interest against a grave and imminent peril.
There are two tests. First of all, have all the alternatives been
considered? Our view in the BAE case was that they had not. Secondly,
is a threat imminent? There is always a possibility of closing
down an investigation on national security grounds as long as
it meets those two tests. Because Article 5 is not part of domestic
law neither the High Court nor the Law Lords ruled on a construction
of Article 5. Had it been part of UK law it might have been possible
for the courts to have ruled as to whether or not the indication
of national security was legitimate under Article 5, or similar
wording. It is of great concern to us, but maybe we will come
to this more in a later question, that from the very start, despite
the Attorney General having given an assurance that Article 5
would be taken into consideration, despite the British Government
giving an assurance to the OECD that Article 5 would be taken
into consideration in investigations, the position of the Serious
Fraud Office was that Article 5 was not a matter that needed to
be considered. That was from the very first witness statement
of the Serious Fraud Office. We do have real concerns that there
is an opening for abusing national security to close down embarrassing
investigations.
Chairman: Mr George, do you want to pursue
Article 5?
Q543 Mr George: No, I think most
of the questions have been answered.
Mr Carver: Can I just add one
supplemental answer because I did not answer the second part of
Mr George's question. As an international lawyer I do not recognise
the derogation that was discussed at length that there was some
permission under the OECD Convention to do what the United Kingdom
does. I do not think that is a valid legal argument at all. It
was never tested and it probably never will be tested. What I
do want to see, which ought to be quite sufficient, is that the
code of practice for prosecutors firmly and unequivocally recognises
Article 5 as a necessary element of the decision when they exercise
their discretion. That way they can be properly tested by the
courts.
Q544 Chairman: That would be the
place to put it, would it?
Mr Carver: In my view.
Mr Hildyard: In our view that
would be insufficient. The OECD has repeatedly asked for the code
to be amended but it has not happened yet and there are no signs
that it is going to be. In any event the code is merely guidance,
it is not binding. It lacks effective force of primary legislation.
As I have just mentioned, the Director of the Serious Fraud Office
declared that he would have ignored Article 5 even if he thought
his decision was in breach of it, and he presumably would have
done so if Article 5 was in the code because it is not binding.
In our view only primary legislation will stop this. Moreover,
primary legislation would allow the courts to decide on the meaning
of Article 5 and not leave interpretation of Treaty obligations
to a prosecutor or, indeed, to the executive. It is really important
that the courts should be able to have a say in the interpretation
of those particular clauses.
Q545 Chairman: They would not if
it was just in the code of practice.
Mr Hildyard: I am not a lawyer.
We have asked for a legal opinion which we will give to you.
Q546 Mr Borrow: If you like, as a
non-lawyer I just want to throw in the politician's point of view
which is that if you are the prime minister and you feel that
something is a threat to national security then you want to have
the freedom and the power to do what is necessary to protect the
nation without having lots of laws and restrictions which would
actually force you to demonstrate in public a lot of stuff which
may undermine that national security. I understand the way you
are arguing on that point, but I am saying as a backstop, at the
end, at some point the person in No 10 needs to be able to say,
"I need to be able to pull that lever to stop that in order
to protect national security".
Mr Carver: Prime ministers have
to act according to the constitutional remit and powers that they
have. Governments commit the United Kingdom and, therefore, commit
the constitutional powers and narrow the constitutional powers
by entering into Treaties. If they have entered into a Treaty
which precludes a particular course of action then that is that.
If they can convince their Treaty partners that this is a legitimate
course of action because this is of necessity that it has to be,
and they can argue that case, that is fine. They can even breach
international law if they want to, but they have to be answerable
for that fact and they have to answer to their co-contracting
states as to why they have done it and whether it is justifiable
and what reparation has to be made for doing so. The Treaty requires
a change in the freedom of the prime minister.
Q547 Chairman: Mr Hildyard, I am
terribly sorry but I have got an eye on the clock and the Committee
is beginning to vote with its feet. Be very quick, please.
Mr Hildyard: National security
is very, very important and our point would be that it is extremely
important for the public to trust the judgments that are made
about national security and to have confidence that the power
to invoke national security is not being abused, and that is why
you need the checks and balances.
Chairman: There are a number of
questions which we have not yet reached. Parliamentary privilege,
I dare say you—
Lord Lyell of Markyate: My Lord
Chairman, I am sorry. May I ask a very short question?
Chairman: Yes, please.
Q548 Lord Lyell of Markyate: We are
a parliamentary democracy. If you remove the power, and hence
the responsibility, of the Attorney General, how do you get parliamentary
accountability?
Mr Hildyard: This is—
Q549 Lord Lyell of Markyate: I would
quite like Mr Carver to answer.
Mr Hildyard: Okay. You have got
little time so go for Mr Carver. I have a view.
Mr Carver: Parliament is sovereign
here. It has its own rights and responsibilities. When you enter
into an international commitment you are answerable to a wider
public than just this one. That is where you have to answer to
and you are accountable there. It takes it into a different framework.
You may, as it were, argue as to whether it is sufficient but
I think that Parliament has to be able to scrutinise the actions
of ministers. I do not see any absence of being able to do so
because it has been vested in the power of the Attorney General.
I was not very convinced, frankly, by the extent to which the
Attorney General at the time really was accountable for his actions.
Q550 Chairman: Could I ask our witnesses
this: we have got four questions left which we have not touched
on yet and I do not think we have got time, to be perfectly honest,
for verbal answers. Would you be prepared to express your views
in writing about those last four questions because I think that
would be very helpful to us?
Mr Hildyard: Yes.
Mr Carver: Yes.
Q551 Chairman: I am sorry this has
overrun a bit but it was important to hear what you had to say.
We are very grateful to you for coming and saying it. We will
read particularly carefully in the transcript what has happened
this morning.
Mr Pyman: My Lord Chairman, if
I can just make one comment at the end dealing, as I do, with
defence matters.
Q552 Chairman: Yes. You have been
very silent, so of course you may.
Mr Pyman: You have heard a lot
from defence companies over the last few weeks strongly supporting
this Bill, and I am delighted to see it. A voice that you have
not heard, which I deal with every month, is the people who buy
the stuff, the governments doing the purchasing. I am asked almost
every month by that purchasing community, the director general,
minister of defence, "Why isn't the UK being clearer and
stronger on defence anti-corruption?" It is a voice from
the purchasers, many of whom are seeking to reform their ministries
and they would welcome the UK being in a good position on this
subject. You have got half of the story with the defence companies
really supporting it and I think this is the other half that the
law holds up in the same way. Thank you.
Q553 Chairman: Thank you very much.
We have got one matter of private business, if my colleagues could
stay for a moment. In the meantime, I thank our witnesses very
much indeed for what you have had to say with some force and with
much appreciation from us. Thank you very much.
Mr Carver: My Lord Chairman, thank
you very much indeed for your time and attention.
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