Examination of Witnesses (Questions 760-772)|
11 JUNE 2003
Q760 Lord Campbell-Savours: Yes,
and one might pay the other four not to bid.
Mr Berkeley: That sort of refusal
to supply, and so on, is an ingredient of anti-trust offences,
Q761 Chairman: But why is it not
also corrupt or capable of being corrupt?
Mr Berkeley: I think that the
point I am making is this. The Bill already has a very heavy jurisprudential
load to bear. It is trying to simplify and bring together a very
wide activity. If you put on top of it something which is more
properlyat least in our viewpart of competition
law, then I think that you are overloading the donkey.
Mr Cridland: I would not want
to leave any impression on this issue that we had some philosophical
problem with the line of questioning or one or two of the suggestions.
Frankly, these are not issues which we covered in our own evidence
and we are giving an initial response. Andrew is entirely right
that the objective of the CBI membership has been to clarify the
legislation. We have been trying to work with government and therefore
we have not said, "Put this on one side and start again".
We have tried to narrow down our list of concerns to a practical
list, which we hoped you would entertain. This is, if you like,
a bit off-line in that respect. We are happy to consult further,
but I do think that the thrust of our membership consultation
has been that they want the law modernised, clarified, simplified,
and that the trend of the questioning is to add a considerable
extra construct. I do not think that we have a philosophical problem
with that necessarily. We would come back to the fact that member
companies would see that dealt with in other principal areas of
law, but we are happy to consult further if it is a matter of
Q762 Chairman: I am not sure I understand
the full import of the word "modernise" as opposed to
"change", but if you work out your concept of what corruption
is really trying to deal with, and you come to the view that there
is a wider range of activity falling within your concept of corruption,
is it really an answer to say, "You can deal with this in
other aspects of the law"when you could probably also
deal with the particular matters that are included in the Corruption
Mr Cridland: We would be quite
pleased to consider that point. We have not consulted our members
specifically on it. I think that it raises all sorts of issues.
Q763 Chairman: I can well understand
the argument that you should not go on duplicating crimes to cover
the same act, or that if you have a perfectly adequate systemanti-trust
law or some other civil lawit may be enough. However, one
needs to be really sure that the agent-principal test is not too
Mr Cridland: I respect that point.
Q764 Mr Stinchcombe: Can I test that
a stage further, just a short distance? If we were to take your
evidence and conclude that we could simplify this Bill, first
by importing some word such as "improper" and thereafter
by deleting the confinements of the agent-principal relationshipso
all hinged on whether there was an improper advantage that was
conferredand, by a side wind thereby, create the possibility
that what might already be a wrong under competition law and anti-trust
law might thereby also be included as an offence of corruption,
would that side wind effect be something that you would fear?
Would it be positively damaging, or would it be an acceptable
risk for having a simplified anti-corruption Bill in the first
Mr Cridland: I think that we would
need to be convinced that it did not unnecessarily duplicate existing
law, or that it produced inconsistencies of application. That
is something that our membership might well be concerned about,
but we would look at it on its merits. I do not think there is
a philosophical hang-up on this.
Q765 Mr Stinchcombe: Do you have
the same concerns of duplication about the economic torts, as
Mr Berkeley mentioned? They have a fairly abstract content. As
I understand matters, at the moment it is not unlawful in any
way under civil or criminal law for, say, one principal to offer
another principal £30 million to induce breach of contract
of employment. Given that it is of uncertain remit, do you have
exactly the same concerns that we should not duplicate the economic
torts also in this legislation?
Mr Cridland: I think that the
point is more about the interrelationship with anti-trust and
competition law specifically, although clearly you are asking
us questions on which we have not consulted and we would need
to check where the business community was.
Q766 Mr Stinchcombe: But you are
broadly concerned about duplication and you are also concerned
that we should not unnecessarily legislate for something that
is already covered by the competition law.
Mr Cridland: Absolutely.
Mr Stinchcombe: That is the principal
Q767 Lord Carlisle of Bucklow: If
you asked the Law Commission, they would say, would they not,
that their fundamental purpose is the codification of the criminal
law? If that is so, is it possible and right to codify one aspect
without looking at other similar aspects at the same time?
Mr Cridland: You have raised a
question we have not previously considered, but which we would
be happy to consider. In the work we have done on this Bill that
issue has not been considered by the CBI.
Q768 Lord Carlisle of Bucklow: So
you would say that you have no considered view on that?
Mr Cridland: We have no mandate.
I can express an opinion. I have done, but I do not have a formal
policy because the CBI has not ---
Q769 Lord Carlisle of Bucklow: Would
you like to see general codification of the criminal law?
Mr Cridland: It is a very big
Q770 Baroness Whitaker: Would it
be helpful to business and industry if fraud were also contained
in an anti-corruption Bill, because they often occur at the same
time? I think that there is no substantive offence of fraud, and
this could be an opportunity. Would it be helpful to roll them
Mr Berkeley: I think that I have
seen a Law Commission study on fraud. If I may take that as a
policy question rather than a legal one, it is hard on management
if they have too much to absorb by way of legislation. From a
management point of view, therefore, I would say that a pragmatic,
bit-by-bit approach is certainly easier and may even be more effective.
Q771 Baroness Whitaker: It is easier
to have separate chunks than one coherent piece?
Mr Berkeley: Yes, because it would
need more work from legal departments, from legal advisers, from
management to make the necessary decisions, and then from the
people who are concerned with writing codes of conduct. It would
be quite a burden on companies in doing thatand on the
CBI. They would probably have to increase their staff!
Q772 Chairman: I suppose it might
be said that fraud is a very much wider concept than corruption,
and indeed the number of prosecutions for fraud is infinitely
greater than the number of prosecutions for corruption. The effect
of fraud in the civil law, of course, is fairly extensive. It
is a possibility to bring them all together but, as you say, there
are some problems. There seem to be no other questions. This has
been a most valuable meeting and we are very grateful to you for
the help you have given us. If, on reflection, you think that
there are things on which you would like to elaborate further,
or any other matters you think we have not touched on that we
should have touched on, we would very much appreciate a note from
you to let us know. It has been very valuable.
Mr Cridland: Thank you for the