Clause 179 - Cartel offence
Enterprise Bill
4:15 pm
Mr Alistair Carmichael (Orkney and Shetland, Liberal Democrat)
I associate myself with the words of my hon. Friend the Member for Twickenham. He does himself a disservice by saying that this is a minor and technical amendment, as it is a significant one in the context of a cartel offence.
On reading the clause, it seems to me that politicians won the battle against the lawyers on this occasion. As a lawyer turned politician, I am familiar with that dichotomy. A great deal of political force lies behind the idea of having to show dishonesty, whereas, as my hon. Friend said, the more regular or expected terminology would be something like ''knowingly or recklessly''.
Does the terminology really matter? I suggest that it does. Lawyers will enforce, judge and interpret the provision, and if one looks at it from a lawyer's perspective, one sees that there will be problems with proving dishonesty. Such a charge brings with it the need to establish a much more complex mens rea, or a guilty frame of mind.
If I were defending a client, I would say that it was not enough simply to show that he knew what he was doing and that the prosecution had to prove that he was acting dishonestly. I would say that it was possible to know something without there being dishonest intent. It is therefore possible to argue that the mischief at which we are striking will not be rectified.
As the provision stands, there will be problems with enforcement. As I said on Second Reading, the success or otherwise of the offence will be assessed according to the number of successful prosecutions. However, the Government risk weakening the offence by insisting on dishonesty. The phrase ''knowingly or recklessly'' is much more in line with other offences, and I commend it to the Minister for further consideration.