Bribery Bill [HL]

My Lords, I start by declaring an interest as a member of Transparency International UK, which is the United Kingdom’s branch of Transparency International. I was also a member of the Joint Committee that considered this Bill in pre-legislative scrutiny. As I said while speaking in the Queen’s Speech debate, this Bill is long overdue. Our current law is based on Acts of 1889, 1906 and 1916. The previous attempt to reform our legislation on corruption was abandoned in 2003, when the pre-legislative scrutiny committee was very critical of the draft Bill—here, I support the tribute from the noble and learned Lord, Lord Mackay of Clashfern, to my old friend the late Lord Slynn. However, it is virtually a unanimous view that the current Bill is a great improvement on its 2003 predecessor and I entirely agree with what the noble Lord, Lord Waddington, said on that. So far as the work of the Joint Committee was concerned, after its first meeting I thought that we would never come to an agreement about the changes to the law that were needed, but I was wrong. The committee’s report was ultimately unanimous. I think that I speak for all its members in being very grateful to the noble Viscount, Lord Colville of Culross, for his chairmanship. Many of the recommendations of the committee were, as the noble Lord, Lord Bach, said, accepted by the Government. In particular, the Government have introduced Clause 7 of the Bill as a replacement for Clause 5 of the draft Bill, which would have made it difficult—and, I believe, virtually impossible—to obtain the conviction of a company, even if it had failed to take reasonable steps to prevent bribery. That is an extremely important change, which greatly improves the Bill. Another issue on which the Government moved some way—although in my view not far enough—towards the recommendations made by the committee was in relation to guidance. The committee decided that guidance needs to be given on what amount to adequate procedures as a defence for a company to prosecution under Clause 7. In paragraph 16 of their response to the committee’s report, the Government propose non-statutory guidance. What the Government propose to put into that guidance seems, so far as I am aware of it, reasonable. However, non-statutory guidance presumably means that nothing in the Bill will require this Government or any future Government to produce guidance. The provision of guidance is sufficiently important to require the insertion into this Bill of a duty for the Government to provide it. In the Bill’s present form, there is no such duty. The committee did not suggest—nor does the Bill require—that there should be any system of clearances for individual projects, as is provided for in the USA. The view taken by this Bill on that subject is quite correct. Clause 9 transfers the need for consent to prosecution from the Attorney-General to the directors of the prosecuting authorities. The Attorney-General, however, retains the power of direction. I disagree fundamentally with the noble and learned Lord, Lord Mackay of Clashfern, on this. I believe that the Attorney-General should not have a power of direction so long as she remains a member of the Government. I should add that it is perfectly possible, although it would be somewhat unusual, for somebody to be accountable to Parliament for a decision that was not that of a Minister. However, although I disagree with this provision, I do not think that that is a cause for any change in the Bill, because it is not a matter for the Bill; if the position of the Attorney-General is to be changed in this respect, that needs to be dealt with in a separate Bill.