Examination of Witness (Questions 599-619)|
10 JUNE 2003
Q599 Chairman: Mr Justice Silber,
we are grateful to you for coming, not in your present capacity
but as a former member of the Law Commission at the time of the
writing of this report.
Mr Justice Silber: Thank you very
much for inviting me.
Q600 Chairman: If we ask you questions
which appear to indicate some criticism you will understand that
they are not personal questions, merely an attempt on our part
to understand what this is really all about. You have seen the
evidence that we have already had.
Mr Justice Silber: Your secretariat
has very kindly sent me a some of it.
Q601 Chairman: The second paper which
you very kindly sent yesterday evening we found very helpful and
useful. Can you tell us what is the intention here? Is it to get
away from the difficulties in all the earlier legislation which
you mention in your paper and which we are very conscious of?
Is the intention to smooth out those difficulties or was it rather
to start again, to produce a new code of corruption covering cases
which the Commission thought ought to be covered which perhaps
were not covered?
Mr Justice Silber: It was really
aiming to ensure that there was in place a sensible law of corruption
and we sought to learn from mistakes that had been made in the
past. It also fitted in with the general policy of the Law Commission
in codifying law. When it was first suggested that we ought to
look at this area, I took a number of soundings from various bodies
to see if they thought it was worthwhile examining corruption
and the clear message that we got back was that there were a number
of very serious defects in the law, most of which related to the
uncertainty of the present law. Therefore, we decided not only
to take it up but the force of the responses we received meant
that we decided that it was proper and appropriate to give high
priority to reforming the law on corruption. That is what we did,
and we found that when we produced our consultation paper that
provoked a great deal of interest which again reinforced the view
that there had to be some change to the present law.
Q602 Chairman: Did you start with
a concept that you had to include or should include the principal/agent
test in various offences?
Mr Justice Silber: We really started
on the basis that we knew relatively little about the law of corruption.
We picked up information about the problems with the corruption
law. We then decided to see how it would be fair to get a proper
and fair balance in this branch of the law. Above all we were
very concerned that people ought to be able to have some idea
as to whether or not conduct they were committing would be criminal.
The clear message that we got back from everybody was that uncertainty
was the real problem with the previous law.
Q603 Chairman: Everybody who has
come here has virtually told us that they think the object of
having a corruption legislation definition of the criminal offence
should be to be as clear and as simple as possible while covering
everything that should be covered. Some people have rather taken
the view that there might have been simpler ways of doing this.
Mr Justice Silber: I have very
great sympathy with their views and we tried to produce something
that was very simple but it just was not possible to do that.
We quickly came to the view with which a lot of people agreed
that we had not merely to use a word like "corruptly"
or "dishonestly". It was necessary actually to spell
out what corruption meant. Once we did that, it immediately meant
that it was complex. I do not pretend that it is possible to produce
something which is both fair and comprehensible and also which
enables the results of particular forms of conduct to be classified
as either criminal corruption or not criminal corruption without
having something fairly complex.
Q604 Chairman: You say in your latest
paper very firmly, and understandably very firmly, that you think
that the appropriate doctrine to define corruption is clear and
effective and one of the questions that we have had to consider
very seriously is whether clauses 5 and 6 and 7, particularly
clause 5, really do indicate sufficiently it clearly to business
men who have got to decide whether they can do things, to judges
and juries who have got to apply it and to lawyers advising their
clients. On a first reading clause 5 really is a bit complicated.
Mr Justice Silber: Indeed it is.
Q605 Chairman: May I say that even
on a second and third reading I still find it fairly complex.
Mr Justice Silber: I thought you
might even have said the 23rd reading. I agree it is but one of
the problems if you do want a comprehensive statute that you run
into this form of difficulty. You, much more than I, have had
to deal with construing quite a lot of criminal legislation and
there are many areas where it is much more complex than this.
If you look at drug trafficking or, if you even look at the powers
of criminal courts, the provisions are more complex than the draft
Bill. If one does take some time, and I agree that it is not necessary
on the first or second reading, it is possible to look at facts
and determine whether they come within the legislation. I ought
to say that I do not take credit for drafting the Bill. We were
responsible for formulating the policy. It was the parliamentary
draftsmen who took it further. Whether or not it could be expressed
more clearly is something on which I could not comment.
The Committee suspended from 4.23 pm to
4.36 pm for a division in the House of Commons
Q606 Chairman: If you look at clauses
1, 2, 3 and particularly clause 5, you ask yourself, what are
you trying to get at? What is the vice you are trying to suppress,
even without looking at the draft? What were you aiming to penalise?
Mr Justice Silber: People who
do not perform their functions or duties properly and are coerced
into doing so.
Q607 Chairman: What do you mean by
Mr Justice Silber: Their duties
Q608 Chairman: I am still puzzled
as to why so much emphasis is put on principal and agent because
it excludes independent businessmen doing some sort of deal which
would in most people's sight be corrupt but they escape from this.
Mr Justice Silber: I would find
it easier to answer that question if you were to give me an example.
Q609 Chairman: Why is the reference
to "principal" and "agent" so important?
Mr Justice Silber: Because that
was our understanding of what, with the extended meaning that
it was given, would cover the type of relationship with which
one is concerned, because I think the idea of corruption is that
people are being given an advantage of some sort in return for
someone not performing their duty.
Q610 Chairman: Duty as an agent,
as an employee or any legal duty?
Mr Justice Silber: No. It is interfering
with a duty owed by the recipient to a third party.
Q611 Chairman: As agent?
Mr Justice Silber: Yes, as agent
in a fairly broad sense. It was thought that that would cover
the situations which ought to be criminalised. Obviously, if there
were situations outside it which should be criminalised, that
is a matter that one would have to examine again, but we postulated
a whole series of examples.
Q612 Chairman: Is the idea that this
Bill should not cover, or is it that corruption truly understood
does not cover, any activities which do not involve principal
and agent? The example we were given was of two businessmen. One
says to the other, "We are both going to tender for this
contract", and one says to the other, "I will give you
£100,000 if you do not tender", so the other takes the
£100,000 and does not tender. Would that be corrupt or not
corrupt? Forget the language of the Bill.
Mr Justice Silber: No, because
that is what businessmen are entitled to do and to arrive at and
are entitled to reach agreements of that sort. The agreement could
also be, "We will give you a contract for something if you
do not tender for another contract", and there cannot be
anything wrong with that contract on the basis that it is corrupt.
Lord Waddington: I am not sure about
that. Surely most people would think that it was pretty shady
for one businessman, without telling the person who is putting
out a matter for tender, to tell another businessman, "Look:
I will slip something on the side for you if you are kind enough
not to tender for this contract". Certainly the person who
is offering the business is being cheated because he is not having
two honest tenders. He is only getting one because somebody is
being given a bribe. Is that not surely dishonest?
Q613 Dr Turner: Could I just add
to that that this is alleged to be quite a common practice in
the engineering industry and it is undoubtedly the kind of behaviour
that is described as a cartel and I do not think anyone regards
cartels as acceptable, and I think most people would say that
there is an element of corruption in it.
Mr Justice Silber: If that is
the case, then you are moving into the situation of distorting
a market. You have to look into it on that basis as that is distorting
the market but that is not what corruption is about. Corruption
is actually striking at interfering with a duty.
Q614 Lord Waddington: I really only
put that in as an opening shot because I thought perhaps you might
have been in error in what you said. The really important point
which has worried all of us is whether this Bill is as understandable
by the ordinary person as might be possible. Surely it is not
enough to say that the Bill could be understood by a judge and
a judge could give a fairly good steer to a jury as to what are
the issues in the case? There is something very funny about a
Bill, is there not, when a layman reads it and does not know whether
he is going to be stigmatised as a criminal if he does certain
acts? I will give you a few examples. Nobody reading this Bill
would know whether they were committing a criminal act or not
if, for instance, they were to pay a small sum of money to a baggage
handler at Heathrow to go behind the carousel and try and extract
their bag as quickly as possible because it seems to have got
lost in the melée. Nobody would suggest that that
was a criminal act and yet it appears to be a criminal act. Then
you have got the case of facilitation payments, payments generally
by a person in order to hurry up the delivery to him of a service
to which he is legally entitled.
Mr Justice Silber: That would
not be undermining the relationship between the person who receives
the money and their principal, as I understand it.
Q615 Lord Waddington: That is not
quite my question. Would an ordinary person reading this Bill
know that that was criminal or not any more than they would know
whether or not moderate corporate entertainment was criminal or
not? They would have to be a genius to understand whether that
was criminal or not, would they not?
Mr Justice Silber: Of course legislation
should be drafted as clearly as possible. I have not got any experience
of drafting and so I just do not know if it is possible to draft
it more clearly. Obviously, if this Committee made the sorts of
points that have just been made to me about the difficulties in
understanding the draft law, no doubt the draftsman would have
to think of a way of dealing with those concerns.
Chairman: We have steered away from what
seems to me to be the fundamental question and that is what we
are trying to deal with in this Bill. Whether the language is
intelligible is a second question. I would like to go back to
what the objective is of this legislation.
Lord Campbell-Savours: Can I take you
back to the question that was asked by the Chairman? Supposing
there were ten companies on that tender list and one company went
to all other nine and said, "Do not bid. I will pay you money
not to bid". Would that not be corrupt? "Here is a bag
of money. Do not bid."
Q616 Lord Carlisle of Bucklow: Did
Mr Justice Silber: I can see the
force of that point in that it does present difficulties in relation
to it, but that would presuppose that there is some obligation
on everybody's part to bid. This corruption project is only looking
at interference with relationships and that is why it has been
drafted in this way but I can see the force of your point.
Q617 Lord Campbell-Savours: But very
often there will be an approved list and the expectation would
be of those on the list that they do know and other companies
would have been excluded from the list therefore could not know
because they perhaps did not meet the criteria.
Mr Justice Silber: That is obviously
an additional point to which serious consideration should be given.
Q618 Lord Campbell-Savours: So your
answer originally has slightly changed?
Mr Justice Silber: Yes. I do not
want to be evasive but I do have the problem that this was all
done a long while ago in 1997.
Q619 Chairman: I understand perfectly
well why you want to say that the breach of trust by an agent
to principal might or can amount to corruption. What I am still
puzzled about is why that is the only situation where you have
corruption. Disloyalty can occur between two people who each have
a loyalty outside the agent/principal relationship. Why not include
Mr Justice Silber: There is no
immediate reason why it should not be covered.