Bribery Bill [HL]

My Lords, I warmly welcome the Bill and thank the Minister for the clear way in which he has introduced it. I also thank the Government for the required preparation. Your Lordships will recollect that a previous draft Bill was rejected by a Joint Committee of both Houses presided over by the late Lord Slynn of Hadley, to whom I pay tribute for the work he did while a Member of the House in both its judicial and legislative capacity. The principles set out in the Bill, and the manner in which it has been put together, are very clear and acceptable. I hope that the Bill will be given a Second Reading with acclamation. I am glad that it is proposed that it will then be referred to a Grand Committee because the Minister has hinted that there a number of detailed points of a committee nature that need to be addressed. I shall mention one or two—I shall not attempt to be exhaustive—which have occurred to me on studying the background and the Bill itself. My first point relates to what have been called "facilitation payments". The noble Lord, Lord Robertson of Port Ellen, gave a good example of these to the Joint Committee. He referred to the captain of a ship who, when seeking to have its cargo unloaded, was told by the stevedores at the port that it would be unloaded only on the condition that a payment was made to someone nominated by the stevedores, not necessarily to the stevedores themselves. That is a very difficult position for the captain of a ship to be in, and yet, if he paid, the Bill would criminalise his payment. Another example I have come across—there are quite a number in this general area—is that of someone on a business trip who, in order to board the aeroplane at the airport, has to get a boarding pass. He is asked by the official issuing the boarding pass for money, not to pay airport taxes but as a payment to the man himself—or the woman herself, of course; it is equally dangerous when it comes from that quarter. It is a difficult issue and I wonder whether the ordinary defence of duress could be adapted and available in this situation. The Minister mentioned the provisions about companies and one of the questions that arises is about the relationship between a holding company and, let us say, an overseas subsidiary company in regard to these responsibilities. We will want to examine these matters. There is also a question, as the noble Lord mentioned, about the defence of adequate procedures. There have been many requests, as the noble Lord also said, for authoritative guidance in this area. Having wondered about this, I think that the department of the noble Lord, Lord Mandelson, could be responsible for giving guidance, just as the Department for Transport is responsible for the Highway Code. The provisions which give effect to the Highway Code in law would be quite adequate for dealing with this matter. It would not be conclusive one way or the other, but it would be guidance that could be referred to as authoritative with the tendency either to implicate or to exculpate according to the situation. A great deal of the difficulty would be resolved by authoritative guidance of that kind, developed by the Department for Business, Innovation and Skills after consultation with the business community. There are many different types of businesses operating overseas, where the question of what is adequate will depend very much on the nature of the business and on the knowledge it has of the situation overseas. There are many other questions that might be raised in Committee. I am concerned about the nature of the consent required for prosecutions. These offences under the older law generally required the consent of the Attorney-General. In the Bill, that has been replaced by the consent requirement of the three relevant directors, depending on the situation. The OECD had something to say about this. I think it is highly undesirable to reduce the responsibility of the Attorney-General, who is accountable to Parliament, in this area. It is true that some people suggest that because a person is a member of the Government, his or her discretionary judgments cannot be justified or treated as trustworthy. Some people may think that, but I think that the last thing that politicians, those with a responsibility in politics, should do is to accede to that. It is very important that the person taking decisions in this area should be accountable to Parliament. A great deal has been done and I have no doubt will be done in the development of protocols between the Attorney-General and the directors and that is a good and useful development, but I find it difficult to agree that the Attorney-General’s consent should be taken out of the Bill without the full discussion that will ultimately be required under the provisions of the constitutional Bill now before Parliament. The last point that I want to make is in relation to Clause 12 and concerns the empowerment of the law enforcement agencies, the Secret Service, including GCHQ, and the Armed Forces on active service to do what the Bill would make unlawful, but to do it lawfully because they have authority to do so. The Constitution Committee has dealt with this in great detail and in a way that I find very convincing. This is a point that requires to be considered in Committee and I have no doubt that in due course it will be. In conclusion, we are greatly indebted to the Joint Committee for its consideration of the Bill—and very full and detailed consideration it was. Those thanks go to its chairman and to all its members. I also thank especially the Law Commission, and I venture to suggest that if its talents were used more freely in connection with the development of criminal justice legislation in this country, the system might be a good deal simpler, and a good deal better. I hope that the Government, having regard to how the procedure has developed into a Bill that is, I hope, very acceptable around the House, might find that attractive for further developments in the criminal justice system as a whole. Whatever can be said about the Bill, both in its substantive provisions and its procedures—particularly in relation to sentencing and the recovery of the proceeds of crime—it cannot be described as simple.