Examination of Witnesses (Questions 640
- 659)
THURSDAY 25 JUNE 2009
BARONESS SCOTLAND
OF ASTHAL
QC
Q640 Lord Goodhart: Baroness Scotland,
is there justification for giving the Attorney General special
powers in relation to matters of national security concerned with
bribery and, if so, what should those special powers be?
Baroness Scotland of Asthal: I
think it is important for the Attorney General of the day to retain
consents in relation to national security, and that, I think,
has been accepted by the OECD as a perfectly proper consideration
in relation to these matters, but I think that, outside of those
issues, then it seems to me perfectly proper for the way in which
this Bill has been set out to be the way forward.
Q641 Lord Goodhart: To ask you a
slightly naughty question, does it follow from that that in the
BAE case it is the Attorney General who should have taken the
decision to drop further investigations?
Baroness Scotland of Asthal: I
think it was not the Attorney General who took that decision,
and you will know that the decision was taken by the Director
of the Serious Fraud Office. In the event that there was a disagreement
between the Director and the Attorney in relation to a matter
which affected national security, then I think in those circumstances
it must be right for the Attorney of the day to say, "I disagree.
This matter is a matter of such importance to national security
that I will take the responsibility of taking this decision myself,
I will give reasons for it and Parliament will be advised that
I have so decided," so I think that is an important safeguard.
Q642 Linda Gilroy: Baroness Scotland,
the OECD's Working Group has been very critical of the BAE litigation,
including the Shawcross procedure carried out by the then Attorney
General. What lessons, do you think, need to be learned from that
litigation, and perhaps you could include some observations on
the OECD's Working Group's concerns about the involvement of the
Attorney General?
Baroness Scotland of Asthal: I
think, firstly, I have to say that it has caused me a great deal
of concern that there was such misunderstanding about how the
decision was taken. I think we need to be very clear that the
decision was not taken by the then Attorney General, Peter Goldsmith,
but the decision was taken by the Director of the Serious Fraud
Office. We also need to be very clear that this issue has now
been dealt with at the highest possible judicial level by the
House of Lords, and the House of Lords said very clearly that
this was a decision which should have been taken, and they affirmed
the thinking and the approach taken, by the Director, so I think
that is certainly a lesson which we can take from it in terms
of how to approach these issues. I think the second issue is that
we need to have much clearer law in relation to bribery and corruption
and that is why I very much welcome this Bill because this Bill
does provide the clarity that we will need and, if I may say so,
a level of simplicity of approach which means that some of the
worries and concerns which arose in the last case of BAE are unlikely
to come again. I know that you will be thinking of the fact that
there was an argument as to whether the offence was itself made
out because of the issue between agent and principal. Well, there
is no agent and principal in this Bill and that is a way of removing
that anxiety in a way that is proper.
Q643 Linda Gilroy: One of the criticisms
was in the application of the Shawcross procedure about consultations
with government ministers and that that may generally not be appropriate
in foreign bribery cases.
Baroness Scotland of Asthal: Well,
I think the most important thing about the Shawcross exercise
is that it must be right for anyone who has the burden of taking
that decision in the public interest to better understand the
consequences of it, from the Government's point of view, before
making the decision. The truth is that those who are most intimately
knowledgeable about the dangers and anxieties of national security
issues will be the Government of the day. They will be the people
who will know, and have access to, the most information and it
must be right that that view, the view of the Government of the
day, is in some way conferred or given to the individual who is
entrusted to make the decision. The decision still ends up having
to be what is a legal decision made by a lawyer, and I know lots
of people do not like that, but at the end it is a decision that
a lawyer has to make as to whether it is in the public interest
to pursue a prosecution, and they can only do that in terms of
national security if they actually have some idea of the anxieties
and reality of what those consequences will be and the people
who have that information will be those intimately connected with
Government.
Q644 Linda Gilroy: One of the criticisms
they made was that they were not convinced that the prosecutorial
authorities looked sufficiently at the national security justifications
and, just generally, that the whole way in which alternatives
to terminating a case have been considered were insufficient.
Do you see any way in which that can be addressed or do you think
it should be addressed and, if so, within the context of this
legislation or within the protocols?
Baroness Scotland of Asthal: Well,
I hear what the OECD said, I obviously listened to it carefully,
and I read what they said, but I also looked at what the highest
court in our country said about the way in which that decision
was made in the House of Lords, and I drew some comfort from their
assessment as to whether the national security issues were well-founded
or not.
Q645 Linda Gilroy: So it sounds as
if that is going to leave disagreement with the OECD because,
rather than having their fears allayed, they have actually expressed
the view that the House of Lords' decision does not allay their
concerns and has intensified them, if anything.
Baroness Scotland of Asthal: Well,
that then is very depressing indeed.
Chairman: I think we had better
come on to another international aspect: what about the security
services?
Q646 Linda Gilroy: The last Joint
Committee recommended narrowing the authorisation powers so that
it could be applied only to bribes paid to protect UK national
security or in order to help detect serious crime, but this draft
Bill is broad enough to allow the use of bribes to protect the
UK's economic interests which, as I say, was opposed by the last
one, so can you comment on how serious the danger is that introducing
a statutory power to authorise bribery by security services will
put the UK in breach of its international obligations not just
to the OECD, but to the Council of Europe and the UN, and should
we in fact be dropping clauses 13 and 14?
Baroness Scotland of Asthal: I
do not think that clauses 13 and 14 will do that. I think the
way in which this Bill is structured is very clear, that, if you
attempt to bribe in order to get advantage in relation to business,
that is prohibited, and I think it is extremely clear. Clause
13 allows the Secretary of State to authorise conduct which amounts
to a general offence of bribery under clause 1 or 2, including
inchoate offences, but he may not give an authorisation for conduct
amounting to an offence of bribery of a foreign public official
under clause 4, including an offence under clause 1 which would
also amount to an offence under clause 4. I think this really
does address the concerns raised by the Joint Committee in relation
to, in particular, compliance with the United Kingdom's obligations
under the OECD Foreign Bribery Convention and accepted by the
Government at the time because the OECD Convention is concerned
with bribery of a foreign public official in international business
transactions and, since the Bill does not allow the authorisation
of conduct amounting to bribery of a foreign public official in
an international business transaction, there is, and can be, I
think, no infringement of the Convention. None of the relevant
international instruments, the OECD Convention, the UN Convention
on corruption, the Council of Europe Criminal Law Convention,
contains any express exemption for the activities of security
and intelligence agencies, but I think there is an accepted view
that States are allowed to take such measures as are necessary
to protect national security and, therefore, it is permissible
to conduct overt law enforcement operations which, we have already
acknowledged, involve actions that would otherwise be unlawful.
Q647 Linda Gilroy: So, if I understand
correctly what you are saying, you are arguing that the law, as
proposed, also narrows the existing power, but, in that case,
why do you think that the Legal Director of the OECD describes
the clause as possibly the only law in the world that would sanction
bribery, and what can be done about that?
Baroness Scotland of Asthal: With
the greatest respect to them, we have to separate the two things,
what someone says and what is correct. Now, all we can do is to
look objectively at what the law is that we intend to create and
whether we are clear that that satisfies the criteria which the
OECD has set out. We would argue that this does. I actually think
that this is a really good Bill because it cures a lot of the
quite trenchant, difficult and knotty problems that we had before
and it cures them in quite a simple and straightforward way which
makes it quite difficult for people to misunderstand it. Now,
I do accept that, in articulating what we are doing now, we are
going to have to argue with the OECD with a greater degree of
precision to help them to better understand this Bill, but I do
not accept that their analysis in relation to the way in which
our law operates is correct.
Q648 Linda Gilroy: Well, on the one
hand, you are saying it makes it difficult to misunderstand, but,
on the other hand, you have got somebody in the position of being
the Legal Director of the OECD either misunderstanding it or simply
taking a different view on what it means.
Baroness Scotland of Asthal: Well,
all I can say to you is that I believe that we are right.
Q649 Chairman: Baroness Scotland,
could we go on to another slightly contentious point, that into
this Bill there has been inserted the whole question of parliamentary
privilege and it is not, as it were, a stand-alone point in terms
of bribery. Do you think that it is sensible to have this clause
in the Bill rather than to deal with it in a more probabilistic
way and, presumably, allow a good deal more discussion than is
going to happen under this Bill itself?
Baroness Scotland of Asthal: I
think it is sensible because we have been looking at this issue
for quite some time, as you will know, Chairman, so it is not
as if we are being precipitate in seeking to grapple with it,
but we have been trying to grapple with it for quite some time.
You will know that there has been criticism in the past that we
have not dealt with this aspect of it, so this is an attempt to
do that which is possible. It is also, I think, right for us to
acknowledge that there has been no recent case of an MP or a peer
seeking to behave in a way that was sanctionable with parliamentary
privilege being an impediment to pursuing those issues, but I
think we have to strike a balance, a balance between protecting
the right of freedom of speech of Parliament and removing what
could potentially be an undesirable impediment to prosecution
of an MP or a peer. The possibility that parliamentary privilege
could protect a corrupt MP or peer really does undermine public
confidence in Parliament as a whole, and I think in the past we
have been able to look at this as a much more theoretical issue.
Public confidence is of the utmost importance if we are going
to be able to have a democratic system which people respect. It
would be a very difficult thing indeed if we were left in a position
of saying that there was evidence which is available which might
assist in a significant way a prosecution, but, because of parliamentary
privilege, we were debarred from using it and, therefore, parliamentary
privilege had been a cloak with which a Member of Parliament,
be it in the Commons or in the Lords, had been able to cloak themselves
to avoid proper prosecution; I think, particularly at this time,
that would sit very ill indeed. However, I think there is also
a wider issue, and I understand those who say this: why should
there be a stark difference between an MP and a peer and somebody
who comes to give evidence before a Select Committee, and should
they not similarly be able to be subject to the provisions of
this Bill? I certainly understand that argument, but what I would
say is that it is probably incumbent upon us to do that which
we can do, if we can do it, when we can, and that this is a perfectly
proper opportunity for us to try and right what might be an unfortunate
wrong if we come to a prosecution and we are disentitled or disabled
in the way I have just indicated.
Q650 Lord Lyell of Markyate: Can
you give a practical example of a case where this really could
happen? Is there any identified case to date which has ever been
frustrated by parliamentary privilege? Secondly, in the other
OECD countries, do they have freedom of speech in their legislatures
and have they taken statutory measures against it?
Baroness Scotland of Asthal: I
think, firstly, of course freedom of speech will still be absolutely
there in our Parliament because we are talking about someone who
does something which is corrupt, so where they say something in
Parliament which is evidence of that corruption to which we cannot
have access, so you could have a situation where various statements
are made in Parliament which indicate that that individual knew
something which subsequently they declaimed that they did not
know, but you cannot use it in proceedings because parliamentary
privilege would prevent you from getting that information, putting
it into evidence and saying, "This is what you said in a
parliamentary debate on the blank day of blank when it was absolutely
clear, from what you said at that stage, that you knew the following
facts". Now, I cannot point to any cases in the recent past
where parliamentary privilege has prevented that happening. Can
I anticipate that there may be cases when that may happen? Yes,
I can, but the emphasis is on corruption, it is not preventing
people from saying whatever they want to say in a bona fide
way and exploring debates; that is not what we are talking
about. We are talking about someone doing something which is corrupt,
for which they should be brought to book, and they make comments
in the House which demonstrate that there is evidence of that,
but we are not able to use it because it is covered by parliamentary
privilege. I think it is something which is more pressing perhaps
than it has been in the past, so it is impossible for us to ignore
the anxiety that there is about this issue.
Q651 Chairman: But there is a difference
though in this clause as between Members themselves and others
involved as possible witnesses.
Baroness Scotland of Asthal: There
is indeed.
Q652 Chairman: Is that justifiable?
Baroness Scotland of Asthal: Well,
that is why I say I understand that there is an issue in that
regard, and I do understand those who say that, if this should
apply in relation to MPs and peers, then surely it should also
apply to those who come before select committees and give evidence,
evidence which may subsequently, for whatever reason, seem to
be corrupt. I understand that argument, but I also understand
the argument that goes that we want to encourage as many people
as we can to come and give information before select committees
and that this might have a chilling effect. It is quite difficult,
is it not, because do we want those who want to come before committees
and lie and cheat and say corrupt things to be chilled. Well,
we probably do, but do we want those who are honest, upright and
have integrity to come forward? Absolutely, so I think it is a
difficult issue, but I do think that it is not contrary to human
rights for this provision to remain and I do think it is an opportunity
for us to grapple with it. Nothing of course in this Bill would
prevent someone saying, "That which I said was true"
and calling evidence to that effect, all of those issues remain
the same as available to them, so, even if someone else gave evidence
for them in a debate, you could still call that evidence before
a court to say exactly what was said in the House.
Q653 Mr Cox: Baroness Scotland, the
example you used of the MP, who is accused of corruption and who
very simply could not have identified a conflict with something
that he may have said, is of course quite a simple example. You
are not suggesting by that that there has to be a prima facie
case before evidence of parliamentary proceedings could be used,
are you?
Baroness Scotland of Asthal: No,
what I am saying is that at the moment anything said in Parliament
of any sort, no matter how important, no matter how useful on
an evidential basis, you simply cannot use because it is—
Q654 Mr Cox: Forgive me, I am aware
of that. The way you put your contention in relation to the fact
that a very ancient privilege should be discarded was to suggest
that there may be a simple factual point which could be disproved
by a reference to parliamentary proceedings in order to prove
corruption, but the truth is that there is no requirement to have
a prima facie case before looking to parliamentary proceedings
to prove a case of bribery, is there?
Baroness Scotland of Asthal: No.
Q655 Mr Cox: So what you might get
is the combing, by prosecutors, through every word that a Member
of Parliament has said during the course of a period of a time
in Parliament in order to come up with prima facie evidence
of the case of corruption if there is suspicion, so that is the
first point. It could be quite an extensive trawl, could it not,
through parliamentary utterances to see whether or not he had
been inclined in one direction or another by a payment which may
be suspected?
Baroness Scotland of Asthal: I
think that is highly unlikely. What you are looking at is where,
if a prosecutor were seeking to establish that someone had behaved
in a corrupt way, they would be looking for a specific instance
or a specific fact which might help to elucidate that, and I do
not think we are talking about going on a general fishing exercise
for everything that anyone had ever said, not least because Members
of Parliament are known for wanting to express themselves quite
fully, over a period of time. Just in terms of the volume, I think
you would be looking with a degree of acuity at a specific issue
to see whether there was something there and I do not think it
is likely to be—
Q656 Mr Cox: I am not, forgive me,
convinced by that, as somebody who has prosecuted and defended
for many years in the senior courts. I think it is quite likely
that what will happen is that the prosecutors will examine what
an MP has said to see whether there is evidence of inclination
in relation to the concern, person or body that has been accused
of bribing him, and I think the danger is that one will see quite
a considerable examination of an MP's words, but perhaps I can
put another point to you, which I do not think has been put squarely
to you, about the difficulty with this. In interpreting the words
of a Member of Parliament, context can often be everything, can
it not, and, if you are not permitted, and I think this is the
point which is addressed in our brief, to produce evidence of
what other Members of Parliament may have said and even the immediate
context of the words that are being used in court against the
Member of Parliament, how can it possibly be fair?
Baroness Scotland of Asthal: That
is why I say that there is still nothing to prevent somebody calling
that evidence. You can call any evidence you like, as a defence
counsel, and you will know that as well as anyone, so, if there
are individuals who, you feel, could put what was said into better
context or if you felt that the prosecution was seeking in some
way to distort or misuse the comments made in the House, then
it is absolutely open to that individual to call evidence from
other people to say what happened.
Q657 Mr Cox: But you cannot use the
Hansard.
Baroness Scotland of Asthal: No,
but you can call the evidence.
Q658 Mr Cox: So he would have to
call, what, ten or fifteen Members of Parliament in the course
of the debate possibly to say, "Well, I said this in the
House and then he said that". How on earth would that conceivably
work?
Baroness Scotland of Asthal: But
I also think that there is a premise in this that somehow the
prosecutor would not do their duty without fear or favour and
would not take into account the context in which it was said,
and that is why, if we come back to our earlier debate about consent,
consent is very, very important.
Q659 Mr Cox: But there may be legitimate
disagreements. You will have spent your life disagreeing with
opponents on the other side who have taken a different view, construction
and interpretation of words used; that is what we do.
Baroness Scotland of Asthal: But
let us be very clear about what we are talking about. If it is
asserted that an MP has behaved in a way contrary to the Act,
as we set out in this Bill, that is an extremely serious allegation,
and you will know as well as I that, when you come to prepare
for those cases, you will prepare very carefully indeed, that
the prosecutor will have to apply the Prosecutorial Code in relation
to both the evidential test and the public interest test and that
all these issues which you, quite rightly, identify are things
which the prosecutor has to satisfy himself about before they
would be able to persuade the Director or, if I still had the
consent, the Attorney of the day that these issues were justifiable
and merited pursuit. I can assure you, as I am sure would Lord
Mayhew and Lord Lyell who have been similarly burdened with the
job of making these consents, that we take that very seriously
indeed, so what you would have to have, in effect, is an incompetent
prosecutor who is poorly supervised, poorly directed and does
not understand their job.
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