FIFA World Cup Bids (Serious Fraud Office)
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The Solicitor-General (Mr Robert Buckland)
It is a pleasure to respond to the debate called by my hon. Friend the Member for Folkestone and Hythe (Damian Collins), and I congratulate him on his terrier-like tenaciousness in pursuit of this matter. It is a serious matter because football—the beautiful game—has occupied the lives and memories of millions of us. A lot of us, as children and young people, looked forward to the World cup, which came round every four years, with great enthusiasm. I must confess that rugby is my first love, but World cups very much form part of my memory. That shows why this is serious, because anything that calls into question the integrity of those responsible for administering the biggest tournament in the world has to be a matter of huge public interest, both here and abroad.
The issues that my hon. Friend raises tonight are clearly important. I have to say that it is not within my living memory that Wales has been in a World cup—1958 was the last occasion. None the less, it is right to say that I have had a fraternal interest in the prospects of the England team in all the World cups that I have watched over the years.
But seriously, tonight we are here to deal with the question of jurisdiction and the potential role of British prosecuting authorities, which could include the Serious Fraud Office. I say that because the SFO has criteria that allow it to become involved in the investigation and prosecution of serious fraud. It is not perhaps correct to make an assumption that if criminal offences were disclosed within the jurisdiction that it would indeed be the SFO that would be the investigating authority. My hon. Friend is right to couch this debate tonight in the terms that he has, because what is being alleged is potentially serious fraud. The question is the position of British prosecutorial authorities in relation to that conduct, wherever it was committed and at what time it was committed. I will deal in turn with the questions that he raises.
My hon. Friend has already referred to the fact that the SFO has been following closely the emerging allegations about the bidding process, and that the director of the SFO, David Green, is considering whether it is appropriate to open a UK-based investigation. It would not be right for me to go into the detail, but I can assure my hon. Friend and the House that the SFO is engaging with appropriate overseas authorities in this matter, and is seeking their co-operation in terms of the sharing of material that would allow the SFO to make an informed determination about whether there are reasonable grounds to investigate an alleged offence in this jurisdiction.
Damian Collins
Is the Solicitor-General able to say with which authority the SFO has been engaging?
The Solicitor-General
My hon. Friend has echoed some of the detailed questions that he has asked, and it would not be right for me either to confirm or deny the existence of any mutual legal assistance arrangements that may have been reached. That is an operational matter that is beyond my remit. I am afraid that I will have to disappoint him in that respect, but what I will say in response to his main question about the process is that the SFO will consider all information brought to its attention, and that includes information from any alleged whistleblowers. The director may then decide whether it is appropriate to open an inquiry and whether he has jurisdiction to do so.
The director has demonstrated that the SFO is well prepared to take on difficult and high-profile cases. Currently, there are investigations into LIBOR manipulation, Tesco, Rolls-Royce, Barclays and GlaxoSmithKline, and the manipulation of foreign exchange rates. Those are all matters of great public interest that have a considerable international dimension. I recognise that the FIFA matter falls very much into that category, but the jurisdictional issues that are at the core of this debate are complex.
I am unable to comment on the allegations relating to the bidding processes for the 2018 and 2022 FIFA World cups except to say that it is clearly in the interests of football generally for this matter to be resolved properly and for any wrongdoing to be fully investigated. That is why I fully support the move by my right hon. Friend the Secretary of State for Culture, Media and Sport who has written to FIFA to ask for full disclosure of the Garcia report. FIFA has in the past asserted a commitment to be more transparent and accountable. Obviously, the best way to do that would be to release the full report. Members will be aware from media reports of the steps that FIFA has been taking in the past week or so and of the criminal complaint it has made to the Office of the Attorney General in Switzerland.
As I have said, the jurisdictional issues are complex, but I shall dwell on them for a moment for my hon. Friend’s benefit. He has asked two questions, one about jurisdiction and another about the applicable law at the material time. FIFA’s headquarters, as we know, are in Switzerland, and it was in Zurich that the bidding process was concluded back in 2010. The FIFA executive committee comprises 28 employees originating from 27 different countries.
I hope that hon. Members will agree that the SFO’s jurisdiction over any allegations surrounding the bidding process is not clear cut. It is entirely possible that allegations surrounding the behaviour of one country during the bidding process might be best dealt with by the authorities in that country, or that allegations relating to the process as a whole might be best dealt with by another. I accept, however, that my hon. Friend has raised his concerns that the constitution of FIFA has the effect of making it difficult for law enforcement agencies in different jurisdictions to apply the law, but it is clear that FIFA’s constitution does not shield its members from criminal liability. The fact that the individual concerned might be a member of FIFA is irrelevant to the question of criminal jurisdiction, and when that is the case I would expect the law enforcement agencies in the jurisdictions concerned to work together to achieve the right results. If UK jurisdiction is engaged, the SFO will play its part.
If the SFO uncovers offending over which our criminal courts have jurisdiction and that meets the director’s criteria, the director will consider whether to open an investigation, whether it points to wrongdoing abroad or here. Relevant to the decision would be the issue of whether the SFO would be the best placed body ultimately to investigate and prosecute offences. As I have said, that depends very much on the facts. Other international partners might prove to be better placed to investigate and prosecute.
Let me deal with the applicable law. Bribery can be prosecuted under more than one piece of UK legislation, depending on the facts of the offence and its timing. The Bribery Act 2010 came into force on 1 July 2011. It has a more developed extraterritorial reach than its predecessors, but it is not retrospective and so applies only to offences committed wholly after that date. Actions before that date are covered by other legislation, which in the case of England and Wales law is the Prevention of Corruption Act 1906, and its jurisdictional requirements are not identical. Therefore, as I have said, the timing of each allegedly corrupt act and its location affects the ability of the SFO to investigate and, where appropriate, prosecute.
Those are just some of the factors relating to jurisdiction and applicable law that might be relevant to the director of the SFO’s decision on whether to commence an investigation in the UK. Depending on the particular facts, UK legislation might not cover the allegations.
Let me turn to the discretion of the director of the SFO. When determining whether to commence an investigation, the director must have “reasonable grounds” to suspect serious or complex fraud. Even when there are such grounds and the SFO case acceptance criteria are otherwise met, offences might still be able to be prosecuted in more than one jurisdiction. When that is the case, prosecutors will work together to determine where allegations are most suitably dealt with.
A number of issues must be considered. Prosecutors need first to identify where a prosecution can take place and how many relevant jurisdictions there are. There is usually a preliminary presumption that prosecutions should take place in the jurisdiction where most of the criminality occurred, but other factors need consideration, such as delays that might be caused, the likely whereabouts of witnesses, evidence and suspects and so on.
I know that my hon. Friend and other hon. Members are anxious that these matters should be brought to a head, as time is ticking on and 2018 is not as far away as it seemed in 2010. We have had the Brazil world cup and are now moving on to the next round. But I urge my hon. Friend and other hon. Members to be patient. As strong as his feelings are in relation to how FIFA has conduced itself, it is right—and an important feature of our criminal justice system—that decisions on whether the SFO is to proceed, and if so how, are for the director of the SFO. As I have said, his office is following developments very closely.
In any event, quite apart from its own processes, FIFA has made a referral to the Attorney-General’s office in Switzerland, and the Swiss are therefore already seized of some aspects of the matter. The SFO continues its own review and stands ready in principle to work alongside colleagues in Switzerland and around the world on this matter.
Damian Collins
Can my hon. and learned Friend confirm that it would be possible for the SFO to make a request to the Swiss authorities to see the Garcia report, and that the decision could be made without referral to FIFA?
The Solicitor-General
As I have said, issues of mutual legal assistance are very much operational matters for the SFO, but in principle such requests can be made. However, I think that it is right for us entirely to cede responsibility for those decisions to the director and to the SFO itself. The important principle here is the independence of prosecutorial authorities, as I know my hon. Friend understands very well.
I will draw my remarks to a close by once again thanking my hon. Friend for bringing this issue, which is not just of passing concern, but of huge public concern, to the attention of the House and for talking frankly about the position of whistleblowers. I reassure him that the prosecutorial authorities in this country have well established procedures and protocols for dealing with alleged whistleblowers, from whichever source they come, and that, as I have said, the SFO would properly consider any information brought to its attention that may be material to these matters.
Question put and agreed to.