Paying for political influence in the UK

by Chris Bertram on October 18, 2011

The Liam Fox/Adam Werritty scandal largely happened when I was away in the US, so I’m only now catching up on the details. These are, in brief, that Werritty, a close friend of Fox (the British Secretary-of-State for Defence, now resigned), paid by various shadowy backers and lobby-groups, accompanied him to a very large number of meetings, including ones involving foreign governments. Some of the details of the financial backing for Werrity and the background in the pro-American think-tank Atlantic Bridge are covered by the Guardian here . Now there’s talk of prosecuting Werrity for fraud for allegedly misrepresenting his status with Fox to lobbyists in order to get their cash. What I don’t understand is why nobody is pursuing the question of whether there’s been a breach of the Bribery Act. It looks to me prima facie like there’s a case to answer.

Looking at the statute :

It is clear that Werritty’s backers promised or gave “a financial or other advantage to another person [Werritty]” , intending “to induce a person [Fox] to perform improperly a relevant function or activity”. In which connection note (1.4) that “… it does not matter whether the person to whom the advantage is offered, promised or given is the same person as the person who is to perform, or has performed, the function or activity concerned.” So an offence can be committed where Werrity is paid to influence Fox. The case also seems to meet the function or activity provisions, since Fox is “performing a function of a public nature” and “is expected to perform it in good faith”, is “is expected to perform it impartially” and “is in a position of trust by virtue of performing it” (though meeting any of those last three clauses would do).

So why aren’t Labour MPs demanding an investigation into whether there has been a breach of the Act?

{ 19 comments }

1

CK 10.18.11 at 1:10 pm

>It is clear that Werrity’s backers [intended] “to induce a person [Fox] to perform improperly a relevant function or activity”.

Can you draw one that out a bit? It’s not so clear to me, although I imagine it’s certainly possible.

2

Tim Wilkinson 10.18.11 at 1:17 pm

One difficulty would be “to perform improperly a relevant function or activity”.

The other is that the briber must intend the advantage to induce the official to act improperly. Paying Werrity to influence Fox only (‘only’) introduces another intermediary into the lobbying process. The payment presumably isn’t itself intended to induce Fox to do something, as a payment made (nominally) to his wife, for example, might be.

3

ajay 10.18.11 at 1:20 pm

What I don’t understand is why nobody is pursuing the question of whether there’s been a breach of the Bribery Act. It looks to me prima facie like there’s a case to answer.

The Bribery Act only came into force on 1 July this year – pretty much all the Werrity stuff predates that. See timeline here from the BBC.
http://www.bbc.co.uk/news/uk-politics-15279405

4

Ginger Yellow 10.18.11 at 1:22 pm

So why aren’t Labour MPs demanding an investigation into whether there has been a breach of the Act?

Possibly because it would open up all paid lobbying to Bribery Act investigation, which would not end well for Labour.

5

ajay 10.18.11 at 1:27 pm

God, I hope I haven’t just utterly undermined a second CB post in two days. People will think I’m holding some sort of a grudge.

6

matt cav 10.18.11 at 1:30 pm

I am not an expert on the Bribery Act. With that proviso, it strikes me that what is crucial, is the “improperly” in “to induce a person to perform improperly a relevant function or activity”. The relevant question is, whether it can be shown that the intention of Werritty’s backers was to get Fox to act improperly. Their defence could be: sure, we paid Werritty to encourage Fox to pursue a certain policy agenda (or in fact, to directly support Fox in pursuing that agenda), but not with the intention of him pursuing that agenda improperly. In which case, it would be like normal lobbying, which also involves paying money to person x to encourage public official y to act in a certain way (including, in the most harmless cases, by providing them with new or different evidence), but does not (or need not) involve encouraging “improper” behaviour – and as such, while unsavoury to many, is not illegal.

Of course, in this case, Fox did in fact behave improperly (as the Cabinet Secretary’s report confirms), but again, that is not the same as it being the intention of Werritty’s backers to get him to encourage Fox to do so.

7

Chris Bertram 10.18.11 at 1:32 pm

#1 and #2 … well that’s the kind of interpretative issue I guess a good lawyer would have a view on. If “induce” is taken very narrowly then the nature of the personal relationship between F and W would then be an issue I imagine. I take it that if you are led by personal attachments to pursue policies other than those you’re meant to be pursuing as a minister of the Crown, that might meet the “improperly perform” test.

#3 and #4 seem a bit in tension …. If ajay is right then Labour has nothing to fear. But I don’t think GY’s worry is right. The “paid lobbying” in question wasn’t just the presentation of argument, representation of interest etc, but involved enabling the lifestyle of the minister’s close friend.

8

Chris Bertram 10.18.11 at 1:34 pm

#5 When I’m wrong I’m happy for people to show me that I’m wrong ajay.

9

Chris Bertram 10.18.11 at 1:38 pm

#6 Matt. I bet that if there were an analogous case involving a local government officer or councillor, a property developer and the officer or councillor’s “close friend”, you could get a conviction. It seems harder higher up the food chain.

10

ajay 10.18.11 at 1:41 pm

As for pre-BA law, that looks a bit trickier. It’s illegal under the Prevention of Corruption Act to bribe someone to influence their actions in relation to their employer, but of course Fox wasn’t Werrity’s employer. You can’t get them under PBCPA because Werrity wasn’t a Crown servant.

If any of the people paying Werrity were American, you might be able to get them under the US FCPA, but probably not since Werrity, again, is not an official of a foreign government.

11

Mr Punch 10.18.11 at 2:45 pm

As far as I can see, Werrity was paid because he was a friend of Fox, and because Fox put him in a position to influence official policy. Fox was culpable for bringing Werrity into the meetings. If he received a kickback from Werrity he was bribed; if he acted with the intent of helping his friend financially, that’s certainly improper and probably a violation of some law, but its legal status depends on the wording of current laws. (It falls under the heading of what used to be known, at least in the US, as “honest graft.”)

12

Chris Bertram 10.18.11 at 3:14 pm

#11 No-one is saying Fox was bribed. The issue is whether the services provided by Werrity to his clients (perhaps fraudulently) constitute a violation of the Bribery Act on their part (in view of what they thought they were paying for).

13

Jonathan Monroe 10.18.11 at 3:25 pm

Given the egregiousness of the misbehaviour, I would go with whatever criminal charges can be made to stick. Espionage would be a good place to start, given that Werrity did not have (and would not have got) the required security clearences to do officially the things he did unofficially.

If he took money from foreign agents, then Werrity is (in fact, if not in law) guilty of treason, and so is Fox if (as seems likely) he knew exactly what was going on.

14

ajay 10.18.11 at 4:33 pm

If he took money from foreign agents, then Werrity is (in fact, if not in law) guilty of treason, and so is Fox if (as seems likely) he knew exactly what was going on.

It’s not treasonous to take money from foreigners in return for lobbying on their behalf. As long as Werrity didn’t give aid and comfort to the Queen’s enemies (and the Americans aren’t that) or have it off with the Duchess of Cambridge, or try to bump off a High Court judge, he’s not committed treason.

As for espionage, that would come under the Official Secrets Act, and so you’d have to show that Werritty had actually passed on some official secrets…

15

Tom West 10.18.11 at 4:44 pm

Given the egregiousness of the misbehaviour, I would go with whatever criminal charges can be made to stick.

Great, the most odious of the right-wing’s tactics seeps into the left.

16

Sam C 10.18.11 at 5:13 pm

The legalities are a side-issue here. The problem is one of corruption, not in the sense of taking actual money, but a nastier, softer form of corruption: looking after one’s friends, doing favours, knowing how mutual back-scratching works without the necessity of explicitly talking about it or anything potentially illegal, that sort of thing.

The Conservative party gets most of its funding from bankers and financiers, and it looks after these friends. Its MPs – at least the ones in Cameron’s government – are rich men in politics for fun and power, not because they have chosen it as a real job. Cameron himself has tens of millions of pounds to his name, he never needs to do an honest day’s work for the rest of his life. And he is not exceptional.

Additional money from other English-speaking non-UK right-wingers is funnelled into indirectly into supporting the Conservative Party and its apparatchiks (like the slimey Werrity) via “think tanks” and other cover organisations.

The Conservatives with most sway in the government are ideologically driven, and their main aims are to trash anything that smacks of stateism (hence their all out attack on the National Health Service, and, to most voters’ amazement, the police and armed forces) and to line the pockets of their friends with funds from the taxpayers, in the expectation that they too will benefit from these ill-gotten gains (not too directly, don’t want to end up explaining anything to a judge). It is the smell of power and the scent of money that drives them, not an urge to make the world a better place.

Jonathon Djanogly is another exemplar of looking after your own: he made sure any regulations designed to stop ambulance chasing would not inconvenience his in-laws’ business. And you can be sure that his family insurance business will not suffer from any “excessive regulation”. He has done nothing illegal, I am sure he won’t do anything illegal, but you can be sure that the Djanogly family will never suffer from anything this government does!

They also have an love of American right-wing politics with its emphasis on money, total freedom for those with power, and demonisation of the poor and dispossessed. It is odious, and in my view treacherous. UK politics should be funded by UK taxpayers, not by rich Australians and rich Americans. It may not be legal treason, but it is moral treachery.

We are seeing capitalism trashing the world economy, stealing money to support its friends, and cementing itself in power.

17

Alison P 10.18.11 at 5:32 pm

The behaviour was secret. It was advancing his private interests, against the interests of the British people. It was against the stated policy of the Government of which he was a member. I also think he implied to foreign governments such as the Sri Lankan government that he was acting in an official capacity or had official clearance. I do not know if that is against the law, but I think it ought to be.

And why was all this secret? Why did he deny it for so long? Because he knew it was wrong. He knew he would have to go if it was found out. It was not an honest mistake.

18

P O'Neill 10.18.11 at 6:03 pm

Could it be outsourced to the US Foreign Corrupt Practices Act? They’re pretty good at finding jurisdiction, with Atlantic Bridge being one possible entry point.

19

ajay 10.19.11 at 9:11 am

18: I am sure they could find jurisdiction, yes. But I am not sure that they would find a crime; I could be wrong but I am pretty sure that FCPA only covers payments to foreign officials – civil servants and politicians – and Werrity wasn’t one.

The best that we can get out of this, I think, is to throw a bit of light on the Great Transatlantic Bullshit Conveyor, which has brought us things like Atlantic Bridge as well as vagrant policies like creationism, school vouchers etc.

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