Examination of Witnesses (Questions 660
- 679)
THURSDAY 25 JUNE 2009
BARONESS SCOTLAND
OF ASTHAL
QC
Q660 Mr Cox: So the case is that
we have to have faith in the Attorney General of the day?
Baroness Scotland of Asthal: I
think we have to have faith in the Attorney General of the day
or the Director who is going to be entrusted with this job.
Q661 Mr Cox: So we are replacing
a privilege of 300 years' duration by resting upon the good fortune
of having a woman or a man of good sense in a public office?
Baroness Scotland of Asthal: It
is not just good sense. It is a case of judgment, real judgment.
I do not think anyone in this room will misunderstand me when
I say that if a prosecution of this sort were to be brought one
would have to be jolly sure that it was sound, and it would not
be taken lightly.
Q662 Lord Lyell of Markyate: Corruption
is quite widespread, I do know, in a number of OECD countries
in quite small ways, perhaps to do with transport. Somebody making
a speech who owned a transport company and explained this might
lay themselves open to similar fact evidence. Is this the sort
of thing you are balancing and who demanded that this section
go in the Bill?
Baroness Scotland of Asthal: The
issue in relation to parliamentary privilege is something which,
as I indicated earlier, we have been debating for quite a long
time. I remember when there was the last Bribery and Corruption
Bill there was a similar issue in terms of parliamentary privilege
and how it should work and whether it should go in or not, so
I think it has been an issue which has been identified and an
issue which a number of people have thought needs to be addressed
for quite some time. The problem in relation to similar fact evidence
I think bleeds very much into the last set of questions that we
have had. It again comes down to the legal judgment as to whether
the evidential barrier is overcome. I do not think that it is
something which we can simply put to one side. I think there is
a decision as to whether we grapple with it or not. I understand
everything that has been said about the importance of it, I understand
the anxiety about it, but I also think it is something that we
cannot run away from. We are talking about what steps we need
to take in order to create a culture in which corrupt practices
no longer prevail. I do not suggest for one moment that we do
not have a very proud history in this country, both in the Commons
and in the Lords, notwithstanding our recent troubles, in relation
to integrity and good conduct. Nothing that I have said should
detract from my genuine belief that we have, both in the House
of Commons and in the House of Lords, much to be proud of, even
in these troubled times.
Q663 Chairman: Nevertheless, Lady
Scotland, you see what I mean about the possibility of mens?
Baroness Scotland of Asthal: I
do; I do indeed, my Lord Chairman.
Q664 Dr Iddon: The main offences
in clauses 1 to 3 can carry terms such as breach of an "expectation"
of "good faith", "impartiality" and "trust",
all determined, of course, by what a "reasonable person"
would expect. Are you content, Lady Scotland, that those terms
are sufficiently clear and predictable?
Baroness Scotland of Asthal: I
think I am. You have heard evidence from the prosecutors themselves.
I think these are terms which are generally understood and accepted
and I do not think the prosecutors think that they are going to
have very much trouble in relation to them. I think they are sound.
Q665 Dr Iddon: Do you think they
might catch any conduct that should not be considered criminal,
including minor torts or breaches of contract?
Baroness Scotland of Asthal: I
do not think they should because there is a clear divide in the
way in which the Bill is structured to differentiate conduct which
is to facilitate and promote business in a corrupt way. I think
it is very clear. I do think you can differentiate between ordinary
entertainment and other proper activities. I do not think there
will be very much difficulty. A lot of this Bill, as you know,
will depend on prosecutorial discretion and this is an area which
I understand the Director of Public Prosecutions was quite clear
about, as was the SFO, that neither of them think that this would
be problematic.
Q666 Dr Iddon: The present law, of
course, contains reference to acts done "corruptly".
Bearing in mind my previous questions, do you think the Bill under
consideration today is an improvement on the current one, and,
if so, perhaps you could explain why?
Baroness Scotland of Asthal: I
do think it is an improvement. The current position has given
rise to a number of issues about whether dishonesty is involved
and how it could come into play. The way in which we have structured
the Bill now I think gives a very clear understanding of that
which is permissible and that which is not, and, as someone who
has been looking at this issue for a long time, it is almost a
pleasure, if I may say so, to look at it because you can understand
it. When you look at this Bill you know exactly what is caught,
I think, and what is not caught, so I do think that is a marked
improvement from where we have been.
Q667 Dr Iddon: The active bribery
offence in clause 1 requires knowledge or intention to be proven.
It is not the case with the passive bribery offence in clause
2. Could you give us your justification for why there is that
difference and is it fair to impose "strict" liability
for a serious crime such as bribery?
Baroness Scotland of Asthal: I
really do share the view of the Law Commission and the way in
which they have approached this issue because they have said that
R's knowledge and intent should be immaterial as to whether an
offence has been committed in cases 4 to 6, as provided by subsection
(7). I agree with that, because R is really going to be in the
best position to understand the duties that he or she is under
and it will be possible for them to avoid liability on the grounds
of lack of mens rea because they can say, "I just
didn't know", whereas, in fact, they will be the people who
are most likely to know what the job was. I do not regard this
as a strict liability offence because under sections (1) and (2)
the person giving an advantage to a foreign public official must
intend to influence the official in his or her capacity as a foreign
public official as well as intending to obtain or retain the business
or advantage of the conduct of the business. If the defendant
has the necessary intention under both subsections (1) and (2)
it really is difficult to see how he or she could offer, promise
or give an advantage to an official without intending to do it.
I think it would just be very difficult to do that. If, for example,
receipt of the money was a genuine mistake the prosecutor would
be able to take this into consideration when deciding whether
to bring a prosecution or not, but a case will only be prosecuted
where there is sufficient evidence that an offence has been committed
and prosecution is in the public interest. I think that shift
is very clear and the Law Commission, frankly, got it right.
Q668 Mr Cox: I am slightly concerned
about that, Attorney General, because, as I understand it, if
I am an employee and I accept a financial or other advantage,
if somebody else intends that I should be accepting it as a reward
for the improper performance of my duty I could be guilty although
I may have no intention of improperly performing my duty.
Baroness Scotland of Asthal: No,
but as a public official you will know whether it is permissible
for you to take additional monies; you will know that.
Q669 Mr Cox: Yes, but if I have no
intention whatsoever of carrying out my duty improperly why should
that not be at least a part of the defence, if not a defence?
Baroness Scotland of Asthal: The
act of taking the money is an act which makes your exercise improper.
You will know you are a public official, you are a civil servant.
You receive wages, you have got a code of conduct, you will know
perfectly well that you are not entitled to take money in order
to carry out your job even if—
Q670 Mr Cox: But this does not only
apply to civil servants, does it?
Baroness Scotland of Asthal: No.
It applies to public officials.
Q671 Mr Cox: Or anybody else, not
just public officials.
Baroness Scotland of Asthal: It
is the person it is in relation to.
Q672 Mr Cox: I could be an estate
agent. I do not have to be a public official with a code of conduct.
I could be in any walk of life.
Baroness Scotland of Asthal: If
we look at the way in which you carry out your job, if you look
at (1), it says, "A person (`R') is guilty of an offence
if any of the following cases applies", so we look at (2),
"Case 3 is where R requests, agrees to receive or accepts
a financial or other advantage intending that, in consequence,
a function or activity to which section 3 applies should be performed
improperly ... ", so that is quite clear. It would be very
difficult to see, if those facts are made out, how it could be
said that an offence has not occurred. If we look down at (7),
which I know is what you are anxious about, it says, "In
cases 4 to 6 it does not matter whether R knows or believes that
the performance of the function or activity is improper",
but if it is made out in 2(2) then that is perfectly understandable.
Q673 Lord Sheikh: We have talked
about mens rea, we have talked about strict liability,
but especially with regard to any offence possibly having been
done overseas can you envisage problems in regard to investigations
there?
Baroness Scotland of Asthal: I
hope that there will not be problems in relation to investigations.
You will know that we already have joint investigations with a
number of countries. It is certainly going to be very important
for anybody doing business to understand what the law is in relation
to the giving of money in these terms in those other countries,
and that is why I think it is going to be of critical importance
for anyone who does business internationally to understand precisely
what is or is not permissible within the law of the country in
which they wish to do business because it will be the case that
if they do give money, which they are not entitled to give within
the law of that country, then they will lay themselves open to
possible prosecution in relation to these offences.
Q674 Baroness Whitaker: Is it not
the case, Attorney General, that if one wanted to change a culture
of condoning petty bribery it would be really important to have
these absence of mens rea provisions just to make it absolutely
clear that advantages, financial or otherwise, were simply out
of the question in relation to the job you perform?
Baroness Scotland of Asthal: I
think that is absolutely right, if I may say so. The whole import
of this Bill is to bring about a change in culture to make it
wholly unacceptable to take bribes and to engage in corrupt practices.
We are saying to people, in essence, "You do this at your
peril". The whole import of the Bill is to change the culture
and you have absolutely put your finger on it.
Q675 Baroness Whitaker: The OECD
representative admitted that this provision, "legitimately
due", was only in at the insistence of the Americans and
that several countries with perfectly reasonable legislatures
had not seen fit to have it in. At the very least he agreed that
we should perhaps have "written law". We have had some
examples of the kinds of legal entitlements which might exist.
I must say they look pretty woozy to me, but do you see any disadvantage
in qualifying "legitimately due" by saying "written
[explicit] law"?
Baroness Scotland of Asthal: I
think I can see that there is perhaps advantage. "Legitimately
due", in our view, would cover written law, including statutory
law, regulations and case law. If by "written law" you
included all of those I think that is really what we are talking
about. We are not talking about custom and practice, which is
not written or not clear because, of course, that can be very
variable, so for an advantage to be legitimately due we would
think that it should mean written law with the qualifications
that I have added.
Q676 Baroness Whitaker: So there
would be no problem if the word "written" were added
because, of course, there are some ideas that in common law jurisdictions
what is not prohibited is allowed and there are other ideas that
if you have something in a legal contract which allows bribery
then it is legitimate. Would it not help just to have the phrase
"written law" so that it was the law of the land?
Baroness Scotland of Asthal: We
would expect the courts to interpret "legitimately due"
in the way you have just expressed, so it may be that clarification
of that might be helpful, but I would probably want to go slightly
further than just saying "written law" in case someone
suggested that it included statute but did not include regulation
or did not include precedents in case law. I think we would have
to be clear that we are talking about an established body of law
which is recognised in that country and we are not talking about
custom and practice, because sometimes the custom and practice
can be pretty corrupt.
Q677 Lord Williamson of Horton: Some
of our witnesses have suggested we should take out altogether
"legitimately due" because of some of the problems of
the interpretation. Others have replied that if you do that you
are in fact leading to a situation where you would be criminalising
perfectly legal activity like applying for an operating licence.
Would you like to comment on that point as we have had evidence
on it?
Baroness Scotland of Asthal: I
think "legitimately due" is legitimately due to be included,
to be frank. It does give us a degree of clarity. It accepts the
reality of the situation that there are those benefits that are
legitimately due to individuals engaged in this practice, and
it is only right and proper that that should be recognised, in
a way, to differentiate between corrupt practices and those which
are perceived and accepted by everyone as being lawful, right
and proper, and thereby, if I can use the term, legitimately due.
I think I would leave it in.
Q678 Martin Linton: Turning to the
"reasonable belief" defence, in this case where the
Law Commission has got it wrong, or seems to have done, do you
feel happy with the position that "reasonable belief"
should not be acceptable because it is a way of accepting ignorance
of the law as an excuse?
Baroness Scotland of Asthal: I
understand what the OECD's anxiety was in relation to this. To
go back to the question that we just had beforehand, it is about
changing culture, and how do we more effectively and clearly change
that culture if we put on the face of the Bill a defence which
could be used as you have just described? The OECD indicated in
their discussions with the Law Commission that they did not favour
this kind of defence but it might be acceptable. They did not
say, "No, you can't do it"; they just said it probably
was not a consummation devoutly to be wished, and if the defendant
was required to show due diligence in seeking to discover the
true legal position that might help. For instance, I could imagine
that if that was included that would perhaps have made the Law
Commission's defence easier. I do know that this is causing anxiety
because it goes in two ways. One, we want to make it clear that
this is now drawing a line in the sand, that practices which were
corrupt in the past and might have been winked at will not be
winked at again and that people need to be on their guard. On
the other hand, there is an anxiety that if you do not have a
defence you are falling back, to come back to the conversation
we were having earlier, on prosecutorial discretion, and there
is an issue on prosecutorial discretion because, of course, a
prosecutor cannot exercise his or her discretion to do something
which is totally contrary to the law. For example, if you had
a situation where someone was going to work in another country
and they took cogent advice, they believed, from some of the most
eminent lawyers they could find, perhaps someone on this Committee,
who has lots of experience on prosecutorial matters, and they
were told, "It's fine. This is absolutely lawful", but
for some reason that person made a mistake so that they acted
in a way which was contrary to the law of the country in which
they were held, they would be caught by the provisions of this
Bill and there would be, on the face of it, no defence. The only
way you could deal with it would be to try and look at it in terms
of prosecutorial discretion. Is that really the correct way of
doing it or would you not have to prosecute the person and then
deal with it on sentencing? I can see that there is a real anxiety
about that matter, but the way in which the Bill is put forward
is in order to give clarity and to try and push the agenda on
in terms of change of culture.
Q679 Martin Linton: Is it part of
the purpose as well to put pressure on foreign countries to clarify
their law so that exporters, contractors, are left in no doubt
about what is legal in their terms and what is not?
Baroness Scotland of Asthal: It
also puts a lot of pressure on the companies, particularly the
big companies, to make sure they do make proper inquiry and discover
what is the legal position in a very concrete way before they
act. It puts pressure on both sides, I think.
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