Bribery Bill [HL]

My Lords, I have the greatest respect for the views of the noble and learned Lord, Lord Lyell of Markyate, on this. He, too, was a member of the Joint Committee. But however high the standards—and I think that they were of the highest for both him and the noble and learned Lord, Lord Mayhew—it increases the risk if somebody both holds the job of being the legal adviser to the Government and is a member of that Government. I would prefer that that did not happen. However, as I said, it is not a matter for this Bill. I have never understood why at the time of the abandonment of the investigation of BAE’s dealings with Saudi Arabia the then Attorney-General, the noble and learned Lord, Lord Goldsmith, pushed the decision to discontinue the investigation on to the director of the Serious Fraud Office rather than taking that decision himself. It does seem that he would have been the appropriate person to take that decision. Now I come to what I see as the most serious problem in the Bill. Clause 13 of the draft Bill gave exemption from bribery offences for acts authorised by the Secretary of State so far as necessary for the functions of—to use their nicknames—MI5, MI6 or GCHQ. The committee was highly critical of this on the grounds that, first, it was not satisfied that domestic intelligence agencies—that is, MI5 and GHCQ—in fact needed the power to bribe; secondly, the Bill was not the right vehicle for extending the powers of the intelligence agencies; and, thirdly, it was doubtful in the eyes of the committee whether Clause 13 met the United Kingdom’s international obligations, especially in so far as exemption could be extended to activities that were intended to protect the UK’s economic interests, not just to national security or serious crime. The Government’s reaction to that recommendation was quite startling. They replaced Clauses 13 and 14 from the draft Bill, as the noble and learned Lord, Lord Mackay of Clashfern, has already pointed out, with Clause 12 of the present Bill. Not only do they fail to accept any of the points put forward by the committee, but they are substantially extending the exemptions. The security services are exempt, but so are law enforcement organisations engaged in the prevention, detection or investigation of serious crime and the Armed Forces on active service. The exemptions do not require any action by the Secretary of State in advance. Furthermore, the SFO and a senior representative of the police both said in written evidence to the Joint Committee that exemptions should not apply to them. I refer to pages 191 and 321 of Volume II, the evidence volume, of the committee’s report. The question of giving exemption to the Armed Forces was never put to the committee for consideration. In their response to the committee, the Government have given no explanation of the circumstances in which the Armed Forces might require the use of those exemptions. It is arguable that there are some circumstances in which obtaining information could be regarded as falling within the scope of the Bribery Bill and that they therefore need some form of exemption—for instance, if MI6 were to pay a person employed in a uranium enrichment plant somewhere in the Middle East to tell it what was happening there. However, if an employee in a company that is conducting a major fraud gives information to the SFO or the police that will assist them in arresting those responsible, I cannot see that giving that information, whether paid for or not, can possibly be regarded as an improper performance of an employee’s functions. If that is right, the action of the SFO or the police in paying informers or deciding not to prosecute them is plainly not bribery. If there is any doubt about that, a simple amendment would put it beyond doubt and would make a large part of Clause 12 unnecessary. Whatever the position may be for MI6, I do not believe that the exemption is needed for law enforcement agencies and no justification has yet been put forward for extending exemptions to the Armed Forces. There is one other matter of concern. The Bill does not deal adequately with the possible liability of a company for acts of bribery committed by a subsidiary or a joint venture company in which it holds an interest. The committee was unable to come up with proposals for how to deal with this because of shortage of time; we were allowed only a very busy 10 weeks in which to consider the Bill. As a result, the Bill does not include any recommendations for how this problem is to be dealt with. Plainly, there is a gap. Apparently, this will be left to be considered by the Law Commission when it is reviewing the law on corporate liability for crime. That may be some time off and meanwhile the absence of rules in the Bill could lead to serious loopholes in criminal prosecutions. I would have preferred to have had this matter covered by the Bill, but I am afraid, given the approach of the end of the present Parliament, it is not practical to include any amendments for this purpose during the time available. The gap will have to be closed at a later date, but that date needs to be as soon as possible. Notwithstanding these criticisms, I believe that this is a good Bill; indeed, it is basically an excellent Bill. It is certainly important, particularly because the United Kingdom’s legislation is plainly inadequate and needs updating. There are issues that need to be debated—