Clause 4 — Fraud by abuse of position

Part of Orders of the Day – in the House of Commons at 1:45 pm on 26th October 2006.

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Photo of David Heath David Heath Shadow Leader of the House of Commons, Shadow Spokesperson (Cabinet Office) 1:45 pm, 26th October 2006

We can probably dispose of these amendments, which continue a useful discussion that we had in Committee, in an equally brief period.

Amendment No. 1 is new and picks up on a point made in Committee by Mr. Grieve. We were considering the following phrase from clause 4:

"A person is in breach of this section if he...(a) occupies a position in which he is expected to safeguard, or not to act against, the financial interests of another person".

The hon. Gentleman made the interesting point that it is possible for the person who might be accused of such an offence no longer to occupy the position in question, but to retain a fiduciary duty on the basis of the position that he had occupied. The clause uses the phrase "occupies a position", rather than "occupies or has occupied", which would be a very cumbersome way of putting it. My amendment would replace that phrase with "by reason of position", which would enable the clause to apply not only to the holder of a position, but to a past holder, and thereby encompasses both without any ambiguity. I simply table it for the Solicitor-General's consideration.

Amendment No. 2 relates to a point that was debated in Committee and is not dissimilar to one tabled there by the hon. Member for Beaconsfield. I remain concerned about the interpretation of the phrase "is expected to", which, in the light of the Solicitor-General's explanation in Committee, extends beyond a fiduciary duty to some other expectation. However, we have not yet satisfactorily concluded in whose mind the expectation lies. Is it in that of the person who commits the putative offence, or in that of the person against whom the offence is committed? Is that expectation what a reasonable person might expect, or what a court might expect?

Although the Solicitor-General helpfully explained fiduciary duty in some detail in Committee, he did not convince me that he could offer examples that would not fall into the expanded definition of fiduciary duty as interpreted by the courts, but which would nevertheless constitute criminality that ought to be caught by this provision. In fact, a fiduciary duty is capable of a much wider interpretation than a strict contractual liability, for example. Indeed, it is already being interpreted by the courts in that way, so it would be a more precise term to use in this clause.

I tabled these amendments in an attempt to improve the Bill, rather than to in any way change its meaning. I think that my terms are more precise, but I look forward to the Solicitor-General's response.