Joint Committee on The Draft Corruption Bill Minutes of Evidence


Examination of Witness (Questions 420-439)

PROFESSOR MARK PIETH

2 JUNE 2003

  Q420  Baroness Whitaker: Under our notion of corruption do we not have an idea of somebody gaining a private advantage at the expense of a public benefit?

  Professor Pieth: Yes.

  Q421  Baroness Whitaker: That is not always there in trading in influence, as you say, it could be lobbying. It is a bit irritating.

  Professor Pieth: I feel a bit uneasy saying something definite here because this is really overstepping my role here. This would be talking about domestic issues and I do not have enough knowledge of the situation in the UK to really help you there.

  Chairman: Another topic which is a sensitive topic which has raised much interest is the question of changing the present position on parliamentary privilege, the Bill of Rights, Article 9 and all of that. Dr Turner, would you like to take that?

  Q422  Dr Turner: Thank you, my Lord Chairman. You will have seen clause 12 of the draft Bill removes the protection of parliamentary privilege from bringing anything that is said in Parliament into court as evidence. The European Court of Human Rights holds that this privilege does not necessarily impede a sensible trial and that the protection is not necessarily incompatible with prosecuting a case. Do you think that the abolition of privilege in cases of corruption is an essential prerequisite for conforming with the OECD Convention?

  Professor Pieth: From the OECD's point of view I think it would be enough if you had a system to simply lift parliamentary privilege. For instance, in a concrete case, a vote in Parliament to lift privilege in a specific case, that would be an alternative possibility. You are not required to have an automatic lifting of the parliamentary privilege. My point is it is more a question of good policy. If 12 is the reason why you have to have the consent of the legal officer, 17—

  Q423  Chairman: We will come on to that in a moment.

  Professor Pieth: I am trying to make the link between the two.

  Q424  Chairman: How far is the concept of parliamentary privilege applicable and enforced in other OECD member states? How far does the question that we are facing here arise in other OECD countries?

  Professor Pieth: I think you have to have a concept to lift it in case a serious crime has been committed and an investigation is under way. You are not forced to automatically lift it by law at the beginning of such an investigation if there are allegations, you can actually go through a vote in Parliament. That would be the standards you would find, for instance, in European countries in most places.

  Q425  Dr Turner: So all other OECD members have got, if you like, a graded lifting of privilege?

  Professor Pieth: Yes. You also have different types of crime. For instance, if it is a case of libel you have to have much more leeway as a Member of Parliament, so there would be a big hesitance there, whereas if it is a real serious crime, dishonest crime in British terms, it is much easier obviously. In our view corruption is something that we consider as serious so there has to be an established procedure to lift it, but not necessarily by law. Upon initiating those proceedings you could actually go through a vote by the body to lift it.

  Q426  Dr Turner: Do you think that clause 12 as it is currently drafted is an unnecessarily blunt and open-ended provision?

  Professor Pieth: I am rather hesitant here because it goes quite far beyond what the OECD is talking about. I am saying there are alternatives to it and please do not make this a reason for the consent because then we would comment negatively.

  Q427  Chairman: It is probably not possible to make an absolute generalisation here as to whether everybody should abolish the sort of parliamentary privilege they have because there are so many grades of protection in different parliamentary systems. It has been suggested to us that some restriction might be justified. Following on from Dr Turner's questions, do you feel that the present proposal goes too far, that it is going to damage freedom of speech in Parliament?

  Professor Pieth: I am a bit hesitant to voice an opinion on that specific point here because this is so much embedded in a discourse which I am not part of. There are obvious alternatives here, other people do it differently. You do not have to do this by international requirements but if you feel happy with it then that is your own—

  Q428  Chairman: If we left Article 9 of the Bill of Rights on parliamentary privilege alone and left it as it stands now, for that reason would we be in breach of any aspect of the OECD Convention?

  Professor Pieth: I must ask you to repeat the question, I am sorry.

  Q429  Chairman: If we did not change our law, if we maintained to full effect the current rule about parliamentary privilege in relation to corruption, would that mean we would not be implementing our obligations under your OECD Convention?

  Professor Pieth: The problem is I would then have to know more about the way you run your parliamentary privilege and whether there are possibilities of overriding it. If there are not then I would feel uneasy.

  Q430  Chairman: If the privilege in practice was virtually absolute?

  Professor Pieth: Then I would have difficulties. However, if the chamber in which the person is participating could lift the privilege I would say you would have no difficulty with the OECD.

  Q431  Mr Garnier: I was just going to ask Professor Pieth, although you do not want to become engaged in domestic political discourse about it, I wonder if you can give me one or two examples of the sort of evidence that you would find useful to present in a prosecution but which you could not do so without the lifting of British parliamentary privilege? Perhaps you had not thought about that, in which case I will not press the question.

  Professor Pieth: I have not really thought about that.

  Mr Garnier: I will not take that further.

  Q432  Lord Campbell-Savours: If you leave it to a vote of Parliament to lift, parliamentarians are political and the way the whips work and the decisions that are taken are not necessarily in the public interest when there are political issues at stake because of reputations, so in many ways that would not work and I am sure it would not work in the United Kingdom. I just put that to you.

  Professor Pieth: I think you are right there but you have different interests to balance and protecting the Members of Parliament from vexatious accusations is obviously an interest that also has to be taken seriously. Again, I am working my way through from clause 17 because the argument for clause 17 has been vexatious accusations. I can see the point particularly with MPs. Give them a chance but do not argue for clause 17 by—I am sorry if I have a one-track mind here.

  Chairman: I rather diverted you from the Attorney General but perhaps we should have a look at him now.

  Q433  Lord Waddington: I understand that concern has been expressed that under the draft Bill the consent of the Attorney General would be required for the bringing of a prosecution and it has been suggested that might be in breach of Article 5 of the Convention. Do you think that people would be happier if while the consent of the Attorney was not required, the consent of the Crown Prosecution Service, for instance, was required? While you are dealing with that issue perhaps we could wrap up in the same question that so far as other jurisdictions are concerned, are there some restrictions on the bringing of prosecutions and where there are such restrictions are they thought to be less likely to offend against Article 5 than what is proposed in this Bill?

  Professor Pieth: Starting with your first point, the Crown Prosecution Service has a similar role, if not exactly the same, as the prosecution service, for instance, on the continent. In some places you have an investigating magistrate, like in France, or a prosecutor. They take the police evidence and take a decision on a professional basis as to whether there is enough evidence to run the case and whether it is worthwhile to run the case or it is such a petty case it would simply be a waste of energy. Those kinds of decisions are in compliance. That is what we are talking about when we talk about professional motives as opposed to political and economic motives. What we are trying to rule out is that somebody says, "This is a good friend of ours, Mr Suharto you cannot do that to us", that will expose him, or the other situation where they say, "We are gaining a lot of jobs out of this contract, we cannot expose this contract, so we will stay the investigation". I am not saying this is being done, I am just saying Article 5 wants to make sure it is not done and clause 17 invites you to do it, or raises questions at least. We have to see exactly what is the role of the Attorney General: does he have any kind of political discretion, why would he be necessary beyond the CPS? The answer to your question is I believe if the CPS took the decision it would be perfectly in line with the Convention. On your next point, there are other countries which—

  Q434  Chairman: Forgive me, but just before we go on, it is of course a very important part of our system, not the CPS itself but the head of the Crown Prosecution Service is directly answerable to the Attorney General and the Attorney General is answerable to Parliament for what the head of the Crown Prosecution Service does. Does that affect your answer which has been given in relation to the Crown Prosecution Service quite generally if it was confined to the head of the Crown Prosecution Service who has a direct line through to the Attorney and a direct line through to Parliament?

  Professor Pieth: The method I am applying here is trying to see what has happened in other cases in other countries. For instance, on the continent if you have a hierarchical prosecution service taking the decisions then you have a head of the prosecution service who is allowed to take the ultimate decision on a professional basis, and if that is the case I would see no difficulty. The question is to what extent the head of the Crown Prosecution Service is a political appointee changing—

  Q435  Lord Carlisle of Bucklow: He does not change necessarily with the government, he is responsible to the Attorney General.

  Professor Pieth: His responsibility, I would assume, is very much professional, he is not necessarily responsible for political decisions.

  Q436  Lord Carlisle of Bucklow: The Attorney General is also the head of the legal system, you might say.

  Professor Pieth: In a way I am trying to ping-pong this question back to you because we would have to know more about the exact situation.

  Q437  Chairman: The suggestion here is at the moment the Attorney General has to give consent. The argument is that somebody should act as a filter here and the Attorney General as the head of the Bar, the head of the advisory government service and so on, is just as good a filter as anybody else. If you merely make the head of the Crown Prosecution Service fulfil that role you are not achieving anything because he is answerable to the Attorney General who is answerable to Parliament. This is the argument—I am not saying I think it is right—that if you want to have somebody totally independent of Parliament—

  Professor Pieth: That is one of the points you would find in a discussion, for instance, of the Italian system or the German system where you always have a filter, you have a separation of power inbuilt between the prosecution service and the government. That is the safety net we have got there. We would have to have a closer look at how independent—

  Chairman: We were told that in some American states there is no filter at all, a prosecution for corruption can be brought by anybody, it is only the judge who can throw it out.

  Mr Garnier: And the prosecutor may well be elected.

  Q438  Baroness Whitaker: Presumably the problem with the Attorney General in the rest of the world is partly a problem of perception because he is known to be a government minister and the Director of Public Prosecutions has no such association, no matter his chain of command. In your view, would it be the same as the DPP being the filter if it were the Director of the Serious Fraud Office perhaps who is more closely associated with the specialised investigations?

  Professor Pieth: The question would be is there a possibility that either the Attorney General or the DPP or the minister ordering the closing of an investigation, for instance, of a specific person. Take France and the very delicate investigations we have just been seeing, there is the protection installed by the juge d'instruction being absolutely autonomous. The same situation applies in Milan, one of the securities inbuilt there is their autonomy. The same thing applies with the German prosecutor, there is no way of stopping him. You can tell him to do his work in general but you cannot stop him. I think that should be your criterion to find the right person.

  Q439  Baroness Whitaker: It is the case here.

  Professor Pieth: The Swiss situation is equally that, that there is no filter at all. The prosecutors are elected, be it by the people or by parliament—Monsieur Bertossa in Geneva was not controllable—and, therefore, they are changed quite a lot. It is essential that if you want to make this instrument really work you have to be very careful to block out political influence, even in the abstract. We are not talking about concrete matters.


 
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