Joint Committee on The Draft Corruption Bill Minutes of Evidence

Examination of Witness (Questions 440-445)


2 JUNE 2003

  Q440  Lord Carlisle of Bucklow: How do you do it if your prosecutors are elected? How do you avoid the political influence? I thought political influence was far greater in your case than the use of the Attorney General over here.

  Professor Pieth: They have an esprit de corps and they are elected for a very specific function, they are not political appointees in that sense. Far from it, they have to live up to the professional standard.

  Q441  Mr Garnier: Can I just reassure you about this esprit de corps. In the Margaret Thatcher Government the then Attorney General, Sir Patrick Mayhew, threatened to bring the police in to investigate his own ministerial colleagues over the leaking of a document to do with the Westland helicopter affair. Historically the independence of the law officers in this country from the political system, albeit that they may be Members of one House or the other, is very strict. I do not think we need to rewrite the constitution of the United Kingdom simply on the basis of the draft Corruption Bill or on the basis of a need to comply with an OECD Treaty. I wondered whether your opinion of need to have the Attorney General's consent is informed by an uncomfortable reaction to the extraordinary elision in our constitution where we have an elected or appointed politician who happens also to be a dispassionate head of the prosecution service, just as you might be uncomfortable with the constitutional position of the Lord Chancellor who is the senior judge, a member of the legislature and a member of the executive all at the same time but nonetheless, despite criticisms one may or may not have of individual occupants of the woolsack, the job seems to have trundled along reasonably well. I wonder if we are just having a problem of translating European Montesquieu-type constitutions on to the situation we have here. It may be a problem that we do not need to worry about too much.

  Professor Pieth: It may well be that you are right and then, of course, it would be an artificial problem. The real question I am thinking of is are you sure that in situations like we have been seeing in Italy, France or Germany recently that a centralised person who is very close to the government, is part of the government, would really be able to be this dispassionate.

  Q442  Mr Garnier: If the Attorney General misconducted his role as the chief law officer he would destroy the government, so he would not do that, and, anyhow, if he wanted to be dishonest he would issue what is called a nolle prosequi even if he did not have the original discretion.

  Professor Pieth: My question back to you is simply why is he necessary? Why can the prosecutors in the CPS not take the decision? Why do you need somebody centralised far away from the actual case? The prosecutors I referred to a moment ago are local prosecutors in the terrain and they take their decisions on each specific case. Here you have got a system of central screening and that is what is going to cause questions to be asked.

  Chairman: Perhaps the test is you need somebody who can be a filter but someone whose decisions are not going to be unduly influenced by political factors.

  Mr Garnier: I think we have got a difference there that we can resolve in the Committee in due course.

  Q443  Vera Baird: I want to ask you about the draft UN Convention on Corruption. I am conscious that we have taken you outside your specific remit a couple of times but we are trying to legislate for the long-term and to ensure that we meet all of our international obligations even if they are not yet firmly and clearly established. Have you got a view about if the Bill were enacted as it currently stands that it would fulfil our obligations under the draft Convention, the January version I suppose is what we have to talk about here?

  Professor Pieth: There is a problem in that I have not formed a definite opinion on that question for the obvious reason that the text is under heavy negotiation still quite substantially. We have whole blocks, for instance all the preventive measures against part of the criminal measures and against monitoring, that are still under negotiation, so an awful lot could still happen. Looking at the UN Treaty, I think there are basically two areas that go beyond what we have in the regional treaties and the OECD Treaty. They are the aspects of repatriation of assets and mutual legal assistance. Those are areas where some genuine work is being done. The question for me which is very open, and I have not really investigated it or thought about it, is whether your Proceeds of Crime Act 2002 covers this question of international repatriation of assets. That would be a point where you would have to have a new look if you want to cover the UN as well. The problem is we do not know at what point they will stop their negotiations yet. If you will allow me to refer to this case that has been bothering us all, the case of Abacha, the money of Abacha, most financial centres have had some of it and have tried to deal with it. The Proceeds of Crime Act gives a very interesting and good instrument to seize the money, it is far better than it was, but the big question is, does it give enough possibility to actually send it back. A lot of questions are open there: what do you do if there is an equally corrupt regime in the country now in place—not referring to Nigeria now—that is an abstract problem you have to deal with and you have the problem that in many countries the Treasury is saying "This is our money, we want to keep this rather than send it back". My short answer to your question is if the negotiations run on the way we are seeing at the moment you will probably have a question as to the repatriation of assets, whether they are adequately covered.

  Q444  Vera Baird: In the Proceeds of Crime Act 2002?

  Professor Pieth: Yes.

  Q445  Chairman: Perhaps if this Bill is adopted, or something like it, these will be questions for the next Joint Parliamentary Committee on the next Corruption Act to follow in a few years' time. Is there anything else Members would like to add? We are extremely grateful to you for coming, you have been very helpful. I think it is perfectly possible that when we come to reflect on all of this we may have questions we want to put to you in writing and if on reflection you think we have not asked you the $64,000 question we should be very glad to have your thoughts on any other matters.

  Professor Pieth: It has been a great pleasure and an honour to be here.

  Chairman: We are very grateful to you.

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