UNCORRECTED TRANSCRIPT OF ORAL EVIDENCE To be published as HC 430-viii

HOUSE OF LORDS

House of COMMONS

MINUTES OF EVIDENCE

TAKEN BEFORE

JOINT COMMITTEE ON THE DRAFT BRIBERY BILL

 

 

DRAFT BRIBERY BILL

 

 

Thursday 25 June 2009

BARONESS SCOTLAND OF ASTHAL QC

Evidence heard in Public Questions 619 - 692

 

 

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Oral Evidence

Taken before the Joint Committee on the Draft Bribery Bill

on Thursday 25 June 2009

Members present:

 

Anderson of Swansea, L

Colville of Culross, V (Chairman)

Goodhart, L

Henig, B

Lyell of Markyate, L

Mayhew of Twysden, L

Sheikh, L

Whitaker, B

Williamson of Horton, L

 

 

Mr Geoffrey Cox

Linda Gilroy

Dr Brian Iddon

Martin Linton

________________

Witness: Baroness Scotland of Asthal QC, a Member of the House of Lords, Attorney General, examined.

Q619 Chairman: Good morning, Lady Scotland. It is very nice to see you and your advisers. I wonder if I could ask you one question which is not on the list. We have had a lot of support for this Bill, but, on the other hand, we have also had a pretty substantial number of suggestions for amendment. I wonder how you see the timetable because we probably need to get this Bill on to the statute book and every day there is a new government Bill which is introduced, so I wonder how you see room for amendments, if any?

Baroness Scotland of Asthal: I think the most important thing is to see whether the Bill is, in itself, in good shape. If it is in good shape and the consideration is that the amendments are narrow, then of course we know that that tends to give a Bill a better chance of getting into the parliamentary timetable. You are quite right, Chairman, the timetable is already quite full and the challenge is there, but you will also be conscious of the fact that, where there has been a Bill which is seen to be basically sound and not unduly controversial, but technical in nature, the House has, in the past, found time for it. For instance, the Bills which you are familiar with which start in our House, the House of Lords, sometimes can go off the floor of the House into the Moses Room in committee and can be dealt with more swiftly. I do not know what the specific timetable is, but I know that the way in which the usual authorities deal with this means that a Bill which is in good order and is not seen to be overly contentious can have a fair wind. I do not know whether that helps you. I did not ask specifically, before I came today, what the timetable looks like, but I do know that we have relatively little time between now and the end of the Fifth Session.

Q620 Chairman: Yes, or indeed between now and the General Election.

Baroness Scotland of Asthal: Well, you can say that, Chairman. I could not possibly comment.

Q621 Lord Anderson of Swansea: That said and the fact of a pre-election session, a rather truncated session, is there any reason for the Government thinking that this Bill has any special priority?

Baroness Scotland of Asthal: Well, I do not know whether it has special priority, but this Committee will know that bribery is a matter which has been high on our agenda for some time. There was the previous Bill, and strenuous efforts were made to try and get that into the parliamentary timetable, so this has remained high on our priority list. It is certainly, because of recent events, something which has even more urgency maybe than would otherwise have been the case, but I cannot say that it has reduced in importance because it has always been something that we thought was of extreme importance. I can certainly undertake to make enquiries as to what the usual channel's view is, but I am afraid, not being one of the usual channel members, I cannot actually speak for them.

Q622 Chairman: In the course of the list of questions, you will find that there are reflections which some people have put forward by way of amendment, and it would be very helpful if you would apply your mind to that aspect of these various matters to help us.

Baroness Scotland of Asthal: I do know, Chairman, that, when draftsmen come to look at the final version of the Bill, they will find whatever comments that are made by this Committee extremely helpful, and I can certainly say, without any fear of contradiction, that the sagacity of this Committee is well understood and that the importance of looking at the nuances that you may indicate will be fully understood also.

Chairman: Well, let us go on to the questions, and can I just remind members that they do not get on to the transcript unless you ask them.

Q623 Lord Sheikh: Baroness Scotland, we begin with Article 5 of the OECD Convention. Do you think there is any justification for incorporating this in domestic law and perhaps to have added to it a Code for the prosecutors? As we all know, the OECD Working Group was very critical with regard to litigation and it felt that perhaps the Government did not engage in enough efforts to restrict arguments to prosecutors based on Article 5 factors, so what are your feelings about Article 5?

Baroness Scotland of Asthal: Well, firstly, to say that I think it is important for us to remember that the OECD has not explicitly requested that Article 5 be incorporated into UK law. However, I think they have made it clear that they wanted to see how it would be respected and addressed, and it is quite clear, that we, as you will know, incorporate it in terms of the Prosecutorial Code, it is something which is referred to by prosecutors and it is something which the DPP has already included in the guidelines. Also, there is of course every possibility that, in the guidance that I give through the Attorney General's guidelines, this is something that could be highlighted too, but it is important to remember that Article 5 has purchase not just on these issues, but generally in the work that a prosecutor will do, and we do think that putting it in the prosecutorial guidelines is the correct place for Article 5 to sit.

Q624 Chairman: For all prosecutors?

Baroness Scotland of Asthal: I think for all prosecutors because this is an important issue and it is not something which simply applies to corruption or bribery, but it is a matter of general application and that is why it is in the Prosecutorial Code, it is why it is in the guidelines and it is why it is an issue which has been directed and looked at by Attorneys General past and I am sure it will continue to exercise any Attorney General's mind in the future also.

Q625 Chairman: I suppose one of the things that we need to consider is the power to withdraw prosecutions because that would also fall within the area of Article 5, would it not?

Baroness Scotland of Asthal: Yes. It comes really, and I know that we are going to deal with it later, in terms of consent because, if consent is given to a prosecution, then it is usual for consent to withdraw a prosecution also to be applied for. Of course we will go on later to talk about whether and who should have that consent and I see that that is in the questions that we will address later on this morning.

Chairman: Well, then we will go on to question 2 about accountability for prosecution decisions if the power of consent is transferred away from you, as Attorney.

Q626 Lord Mayhew of Twysden: Attorney, we come on straightaway actually to this question, do we not? It has been confirmed to us that, if the requirement for the consent of the Attorney for bribery offences is removed and is vested solely in the Directors, there will not be any parliamentary accountability, and I wonder if you could help us about that. To what extent do you, in your experience, find that parliamentary accountability is a reality, how does it work, how important is it and what would be the reaction be, do you suppose, of the House of Commons if it was found that it was no longer available from the person who actually has the decision?

Baroness Scotland of Asthal: I think, firstly, it is implicit in your question that parliamentary accountability is actually very important. It is important because both in the House of Commons and in the House of Lords there are questions which Members wish to have addressed and addressed directly; they want to know what is being done in a particular case and why, and we saw that quite graphically on a number of occasions in the House over the last ten years. Accountability will remain because, for so long as the Law Officers, that is the Attorney General and the Solicitor, remain the supervisors and the superintendents of the prosecutorial authority, there is a vehicle through which that accountability can take place. I think it is also important, however, to have a purchase on consistency in the way in which these consents are to be exercised and, therefore, although it is proposed that it should be delegated to the DPP, I think it is going to be important for us to underscore the importance of that consent. At the moment, I would take those decisions myself personally. The issue would be scrutinised of course by the very able people who currently assist in the Attorney General's Office, and we have got some very senior officials who are skilled in the law in relation to this area and they will assist me, but the final consent whether to approve or not approve is taken by me personally or by the Solicitor General, but it is a very personal consent. These issues are very important, so one would expect that, if the matter were to be taken or consent were to be given by a Director of the DPP or otherwise, there would be an appropriate degree of seniority in taking that decision. When we come to the Constitutional Renewal Bill, there have been a number of suggestions as to which decisions the Director may choose to take himself or delegate to a person whom he has identified as having the competence of seniority to take that decision, but also we have to understand that there needs to be some flexibility in the organisation in order to enable them to deal with that matter appropriately.

Q627 Lord Mayhew of Twysden: I think we may come next to a little more about that aspect of the matter, but I think I understood you to say that, even if the requirement for the consent were removed in this Bill, there would be a measure of accountability by virtue of the superintendence that the Attorney has of the Directors.

Baroness Scotland of Asthal: Yes.

Q628 Lord Mayhew of Twysden: But will that survive in the Constitutional Renewal Bill because I thought that the whole thrust of the OECD's Working Group's criticisms has been the involvement of the Attorney, as a member of the Government, in matters connected with prosecutions?

Baroness Scotland of Asthal: Well, I think it should survive. Our proposal is that the Attorney General and the Law Officers remain the people responsible for the supervision and superintendence of the prosecutorial authorities, the oversight, and it is still proposed that there should be a protocol entered into between the Directors and the Attorney so that there is clarity about that relationship and what is due by one to the other. For example, there is going to be the preservation of the duty or ability to consult the Attorney and you, Lord Mayhew, will remember that many prosecutors both in the Government Legal Service and elsewhere very much value the opportunity to come to the Attorney to seek the Attorney's independent advice and guidance in relation to complex and difficult issues, but in this instance of course, where the consent is transferred, it will be the Director's own decision and not the Attorney's decision which will count. Indeed, in looking at the papers, as I have, I have not found instances when Attorneys past, and I see that Lord Lyell sits behind you, where any Attorney in the resent past has found it necessary to direct in these issues. It has always been the case that the Directors will take their own view, but they have, in the past, been supported and assisted by the ability to consult the Attorney of the day in relation to complex and difficult matters.

Q629 Lord Lyell of Markyate: Well, I am very grateful, and I think you are putting your finger on it, if I may say so. Accountability is extraordinarily important, that is the responsibility to Parliament and you cannot have responsibility without power. This is where you were quite right to point out that consent by the Director is one question, but, and this is my view and I believe that we agree on it, it must be subject to the statutory duty of superintendence which carries with it the power, if necessary, and I will come to that in a moment, to direct. Now, you rightly said that in recent years, and I think it goes back a good 100 years and it was something which was not terribly well understood in every aspect of Government, this has a very, very valuable creative tension because no Attorney has ever, in the past 100 years, directed, unless you take some rather loose language in Lord Shawcross's autobiography, that it is absolutely essential that the superintendence power should contain the power, if absolutely necessary, to direct. It is that meeting in difficult cases of two minds which must remain in the Constitution.

Baroness Scotland of Asthal: Well, I know that that is very, very strongly felt and very strongly expressed. I also know that there is great anxiety with the proposal that we have made that the Attorney should no longer have the power to direct, but we do think that it is possible now to entrust that power quite legitimately in the Director of Public Prosecutions and/or the Director of the Services for this reason: that we understand the view, a bit like having your nuclear missile, that you will never use it, but it is a comfort to know that it is there, and we do not think that that is necessary any longer if we can replace it with an open, transparent protocol which sets out very clearly the respective roles and responsibilities of the Attorney and the Director. When I first came to review the whole role of the Law Officers and the Directors, it seemed to me that there was no clarity to the wider world. The Directors understood the way the relationship worked, the Attorney understood the way the relationship worked and those intimately connected were very clear about how the relationship worked and the rigour that there was and the independence that there was between those two roles, but I do not think that that was understood by anybody outside that small purview. Therefore, what we propose to do is to bring that clarity and transparency in the protocol, so it will be clearly set out the role of the Director, clearly set out the role of the Attorney, and it will be better understood how that tension works between the two in a creative way to give real independence and rigour to the decision-making process. I do think that that is an important change, albeit I absolutely understand that it causes anxiety, but you will know, Lord Lyell, that anxiety has been expressed the other way by those who say that there should be no parliamentary or other supervision in relation to the prosecutorial authorities, that it should be wholly removed. That too would cause a difficulty in terms of what Lord Mayhew talks about in terms of accountability because how then is Parliament going to be able to hold what the prosecutorial authorities do precisely to account and interrogate it and test it in a way that does not improperly impact upon the independent exercise of discretion by the prosecutor on a day-to-day basis, on a case-by-case basis, but holds them to account in terms of the strategic direction in terms of what the public would expect prosecutors to do? That tension, we think, can help in a proper balance by the clarity that will come from the protocol that we have been able to create and would be proposing to publish or, at least, outline if the Constitutional Renewal Bill came forward.

Q630 Lord Lyell of Markyate: I am perfectly happy with the protocol, although I do not think you have produced a draft yet.

Baroness Scotland of Asthal: No, not yet.

Q631 Lord Lyell of Markyate: I think the draft is going to be extremely important. I am much in favour of clarity and I am glad you used that word and not "transparency", which is getting a bit demoted. However, the ultimate responsibility and power must remain in the independent Law Officers of the Crown, and that does not mean that the consent cannot come from the Directors, which I think is perfectly sensible, although question 3 will identify whether they can further delegate it, but we will come to that in a moment, but, if you remove the power of the Law Officers to direct, they then do not have power and yet they are supposed to have responsibility and the two do not add up. Unless that is left, and remember it is attacked by some people who, as you rightly say, do not really understand how it works, but it does work, it has worked for generations and it is an essential part, and I suspect you have already discovered yourself in the naturally and properly confidential dealings that you have had that it is an essential part of the relationship, but prosecution, like judging, is ultimately part of the governance of this country for which the Government of the day, although it gives it to independent people, is responsible, and that is why the Law Officers are in such a special position, as indeed is the Lord Chancellor when it comes to the appointment of the judiciary. Are we in agreement?

Baroness Scotland of Asthal: We are certainly in agreement that the Law Officers' supervision of the prosecutorial authorities is essential for accountability. I think that where we may not be in agreement is in the necessity to retain the power to direct. I absolutely understand that force of the argument which is made and has been made actually by every Attorney General before me, but I do think that it is possible for us to move forward and I do think it is possible for us to say that that power to direct can now be removed, provided that we put in place a clear outline of how that will be done. Accountability, I absolutely agree with you, is so important to both Houses of Parliament, but actually incredibly important to the people of our country because, at any time anything goes wrong, people want someone to be held to account, they want someone to be able to answer for what is done, so I do think that the comprehensive review that I have undertaken enables me to say that we have a way forward which will enable us to devolve more responsibility to the Directors, but without improperly impacting upon our power and ability to account to Parliament. I understand that that is not a position everybody is comfortable with and I understand that we will have a very robust and vigorous argument about that if and when the Bill comes forward.

Q632 Lord Anderson of Swansea: I was a little puzzled as to how there could be greater tension between the Attorney and the Directors if the Attorney were wholly deprived of any opportunity of being a longstop, so you have tried to square that circle by saying, as I understand it, that the Attorney would give strategic direction. Would, however, that change in fact deprive Parliament of debating or intervening on particular cases, such as the BAE one?

Baroness Scotland of Asthal: The thing is that Parliament has no role in terms of intervening on individual cases. Individual cases will always be the jurisdiction of the prosecutor and that is why we have independent prosecutors. Parliament sets the framework, Parliament can set the agenda, Parliament can change the law and Parliament can do a great deal, but it is not quite omnipotent when it comes to our justice system because of course it is very important to have this separation of powers, very important that, when a prosecutor makes that decision, they make that decision wholly independently of Government and wholly independently of Parliament.

Q633 Lord Anderson of Swansea: That said, Parliament can comment ----

Baroness Scotland of Asthal: Yes.

Q634 Lord Anderson of Swansea: ---- and review, in a sense, that decision. Would Parliament now be deprived of such comment and such review if the Attorney were limited to overall strategic direction?

Baroness Scotland of Asthal: I think what we have to be clear about is that Parliament will continue to have the opportunity to ask questions. Provided of course that the Attorney and the Law Officers remain, the Law Officers would be able to be held to account for what the prosecutorial authorities did or did not do. You are absolutely right that, when it comes to the final decision, what the change that we propose would mean, if there were a difference between the view of the Law Officer and the view of the Director and those two could not be reconciled, which has never, to my knowledge, happened because we are talking about the law and, when the Law Officers look at these questions, they are looking at them as lawyers and not as politicians, if there were that difference, then the Director's view would prevail and the Attorney would have no power to override that view even if the Attorney thought that the decision which was about to be made by the Director was wholly wrong.

Q635 Chairman: Well, that is very clear and it plainly also answers the question that you are not in any way suggesting that we should abandon the idea of consent?

Baroness Scotland of Asthal: No.

Chairman: But at what level would the consent be given, on which Lord Sheikh has a question.

Q636 Lord Sheikh: You also referred to delegation of power and under paragraph 2 of clause 10, we see, "The function of Director of the Serious Fraud Office may be exercised by a member of the Director's staff who is authorised by that Director", which is causing me a little bit of concern. What do you feel about this delegation of power? What is the justification and can you see any problem related with this devolution?

Baroness Scotland of Asthal: Well, the first thing is of course that the Director must have a reasonable degree of flexibility to organise the administration and operation in relation to these issues, so that is why it is expressed in that way. In the protocol that we are working on, we have been looking at which consents should properly be retained by the Attorney, which consents could properly be delegated and then, if delegated, which people within the Director's agency should properly be authorised to give those consents. Now, in my own view, I would anticipate that matters of this seriousness are likely either to be taken by the Director himself, which is what I currently do and the Solicitor General currently does, we take these decisions ourselves, or to be delegated to nominated and identified individuals. I would anticipate that that is the likely way in which the matter would be dealt with.

Q637 Lord Sheikh: So you and the junior official may perhaps do the investigation, but the final work will rest with the Director? That is so, is it?

Baroness Scotland of Asthal: Well, it would be a matter for the Director to decide, but I would anticipate that the Director would look at the seriousness of the issue, the importance of the decision made, the need for continuity, and that is general management in terms of the workload, and I would reasonably anticipate that the consents of this sort would be likely to be taken by the Director himself or an identified senior nominee.

Q638 Lord Sheikh: So it is a question of workload really? Am I right in thinking that?

Baroness Scotland of Asthal: It is a question of workload, but it is also a question of importance. If these consents are as important as we believe them to be, that they currently need the consent of one of the Law Officers personally, one would reasonably anticipate that these consents would be right at the top of the workload and, therefore, would be the ones which were most likely to be taken by the Director personally or by a named nominee. For instance, the Committee will know that the reason why we changed the position for the Solicitor General was that, in the past, all these decisions could only be taken by the Attorney personally and now of course the Solicitor General has, in the Attorney's absence or as directed, the opportunity to sign these consents also, so I think it would be totally reasonable for the Director to identify senior people within the agency who would carry out that function.

Q639 Lord Lyell of Markyate: We were told by the Director and by the Director of the Serious Fraud Office that, respectively, the Crown Prosecution Service handled five or six corruption cases in the last five years and the Serious Fraud Office one. It seems to me that there is no reason at all why it should not be the Director himself or herself who takes these decisions because what you are saying is that the normal rule which applies in both services is that, once you say something is decided by the Director, it effectively means any Crown Prosecutor. Is there not a strong case here for saying that "the Director" means the Director.

Baroness Scotland of Asthal: There is a case for saying that, but I just want the Committee to hesitate for a moment for me to assure you that in the protocol, which we are looking at, we are seeking to identify those consents which should be taken by the Director personally or by a named nominee and those decisions which could be taken more broadly. I would anticipate, looking at the way in which we worked on the protocol, that this form of consent would be taken by the Director or by a named nominee. I think it would be very difficult to say that it has to be taken by the Director and him alone because we are all mortal, not that I wish ill of our young and vigorous Director, but even he may become incapacitated and be unable to make these decisions and, therefore, it must be right that he can identify a senior nominee in his absence who would be able to take these decisions in his stead. If, by your question, Lord Lyell, you are saying that you do not believe that this decision should be taken by any Crown Prosecutor at any level, including the most junior, then certainly I would agree with that.

Lord Lyell of Markyate: I do not think it is a practical problem.

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 incurred expenses, but he may not give, 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 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 precipitous 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 be 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 15 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.

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.

Q680 Mr Cox: But in some of these countries there will not be an established legal system; there will not be lawyers like that. What do you do there, Attorney General?

Baroness Scotland of Asthal: That is one of the testing issues now in terms of why we say the written law. There has to be law. The question is, if you cannot do business with those people because there is no basis upon which you can give money, then you cannot do business.

Q681 Mr Cox: Bad news for the country.

Baroness Scotland of Asthal: It is a sad day, is it not, if we were to say, "You can't do business save corruptly"? There is always an opportunity for you to do legitimate business in a way that is clear, transparent and open.

Q682 Lord Lyell of Markyate: Change of culture is very important in some areas, but you do not do that by producing a law which is perceived to be unjust. That is the context of the "reasonable belief" defence. It is a very serious question, is it not?

Baroness Scotland of Asthal: I think it is a very serious question. I do think though that the way in which the Bill is currently structured it is fair and it does enable those who have behaved properly to know precisely what will be done in relation to their act and they can be confident that if they have behaved properly they will not fall foul of this Bill. If we had thought that this Bill could not be fair without the Law Commission's "reasonable belief" defence we would certainly have put it in, but we do think that the OECD's anxiety about this kind of defence was well-founded.

Q683 Lord Goodhart: Lady Scotland, let me ask you this. Under clause 5 one of the conditions that has to be satisfied for the prosecution is to show that a responsible person was negligent in failing to prevent the bribe. What is the duty of care that gives rise to negligence, because you cannot have negligence without a duty of care?

Baroness Scotland of Asthal: As you know, the proposal for a negligence requirement coupled with a due diligence defence which was arrived at by the Law Commission after really carefully considering all the options. In my view it represents a balanced solution to the problem of the removal of one element; that is the negligence requirement, which would threaten that balance, because you were talking about, I think, in terms of whether we should have negligence or gross negligence.

Q684 Lord Goodhart: "Gross negligence" I think would be dreadful. I think it would defeat the whole purpose of the Bill. Anyway, go on.

Baroness Scotland of Asthal: I think the importance is that negligence is a well-established concept. Everyone is familiar with it in terms of the business sense. It is an opportunity, therefore, to apply it with the greatest degree of ease and I do not think it would be necessary to define it because the ordinary principle with which we are familiar would be capable of operating in a way that makes good sense.

Q685 Lord Goodhart: But negligence must include a failure to put into force adequate procedures to prevent bribery.

Baroness Scotland of Asthal: Yes.

Q686 Lord Goodhart: Does that not mean that what is happening here is that you end up by saying that a failure to set up adequate procedures is both a matter which has to be proved by the prosecution under clause 5(1)(c) and is a defence under clause 5(4) which has to be proved on the balance of probabilities by the defendant?

Baroness Scotland of Asthal: The prosecution are going to have to prove that they failed in their duty and produce evidence as to what was reasonable in those circumstances. I suppose it is going then to be for the defence to say, "No, you have got that entirely wrong. In fact, what we did was wholly defensible and entirely proper on the balance of probabilities". I can see that you are saying, if we have to prove it beyond reasonable doubt and they only have to prove it on balance of probabilities do they then succeed? As I am rightly reminded, if we look at clause 5, it is probably the difference between a responsible person who is negligent at 5(1)(c) and the company who is negligent, and that difference is quite important.

Q687 Lord Goodhart: Why is it necessary to prove that a responsible person has been negligent? Is it not obvious that if the company has no adequate procedures in position you do not really need to identify who the individual or individuals are who are responsible for that?

Baroness Scotland of Asthal: I think you still would, Lord Goodhart, because if you are looking at the "relevant commercial organisation" you have to establish that if the person "performing services for and on behalf of C bribes another person" the bribe was connected with the business and the "responsible person, or a number of other such persons taken together, was negligent in failing to prevent the bribe". I do think you have to prove both.

Q688 Lord Goodhart: Why do you have to identify the individuals who are responsible for the negligence? If there is a failure to set up adequate procedures that is in itself negligent, surely. You do not need to go and look through the company's management and say, "X is responsible for this and Y is not". Why not just abandon the need to show who is the individual who is responsible, and say, "There is a failure here. We do not need to know which individuals are concerned. There appears to us to be a failure and it is up to the company to say, 'We did have adequate procedures'."?

Baroness Scotland of Asthal: I think when they were looking at it they were probably looking at it in terms of having to establish that there was someone in the company with that responsibility. I do see the point you are making. It would make it even more onerous than that which we have currently structured for the company.

Q689 Lord Goodhart: It would, but rightly, surely? If 5(1)(c) has to be satisfied there are going to be very few prosecutions that succeed, or a reduced number.

Baroness Scotland of Asthal: I see what you say. I think you are a harder man than we, Lord Goodhart, in terms of this offence, but I am certainly happy to take that away and think about it.

Lord Goodhart: Thank you.

Q690 Chairman: Lady Scotland, corporate liability is going to be the subject of a completely different Bill and I think we do need to satisfy ourselves that what we have got in here is workable.

Baroness Scotland of Asthal: I think what we have here is workable, but what the noble Lord Goodhart is suggesting is that we should be even more trenchant in the way we deal with it, which is another matter. The way in which this Bill works, Lord Goodhart will probably acknowledge, means that it is workable. All he is suggesting is that it would be easier to prosecute more people if we were to change it and make it even more trenchant in the way in which it has been expressed.

Chairman: I knew this was going to happen. We are going to lose our quorum.

Linda Gilroy: There is a statement on national security.

Q691 Chairman: I quite understand. I did want to get on to question 14 because everybody has said there should be guidance on the main offences, it is very important. I do not know how it would work at this point.

Baroness Scotland of Asthal: My Lord Chairman, would it be helpful if I were to provide a written answer in relation to that matter? Would that help the Committee?

Q692 Chairman: I think it would be very helpful indeed because, to start with, who would do it? Secondly, how would it be admissible in a trial? It would have to have some status. The Americans have an entirely different system. Nevertheless, everybody thinks it is lovely if you can get guidance on which you can then rely and I think the practicalities of that would be very difficult.

Baroness Scotland of Asthal: I think it would be very difficult and I am very happy to amplify my evidence by giving written answers, and, if I may, I will also give a written answer in relation to Lord Goodhart's intriguing suggestion.

Chairman: Thank you very much indeed for everything you have been able to tell us. It has been extremely helpful in every way and has greatly advanced our deliberations.