Bribery Bill [HL]

My Lords, I join other noble Lords in warmly welcoming the Bill and commending the work of the Joint Committee. I hope that the Bill will be enacted speedily and push this country up the league table of the least corrupt countries, from a disappointing 17th place, if I understood the Minister correctly, to a Champions League position. I will focus my comments on Clause 12. Like the noble Lord, Lord Goodhart, I regard Clause 12 as the most controversial provision of the Bill, providing as it does a defence for certain bribery offences for persons engaged in law enforcement functions, the work of the security and intelligence services, and the conduct of the Armed Forces. Such exemptions inevitably raise difficult and sensitive questions about the rule of law. As the Minister has already mentioned, your Lordships’ Constitution Committee, of which I am a member, has published a report critical of Clause 12, which I commend to the House. I should like to mention briefly my three main concerns about Clause 12. My first concern is to understand why the Government think that it is appropriate to create an exemption for the domestic intelligence services from the criminal offence of bribery. The Joint Committee, at paragraph 203 of its report published in July, said that it had heard, ""no persuasive evidence of a need for the domestic intelligence agencies to be granted an authorisation to bribe"." Why then have the Government not accepted the recommendation of the Joint Committee to remove the clause creating this defence? In any event, surely the Joint Committee was correct when it said, at paragraphs 202 and 203 of its report, that if the intelligence services believe that they can justify exemptions from the criminal law, the case should be put before this House and the other place by means of an appropriate amendment to the Intelligence Services Act 1994. My second concern is that the Government’s response to the report of the Joint Committee on these defences was not to narrow the exemptions from those in the draft Bill, but to increase them. The exemption in the draft Bill was confined to the security and intelligence services. The Government now seek to include in Clause 12 an exemption for law enforcement agencies—a category which is broadly defined to cover bodies such as HM Revenue and Customs, local authority trading standards officers and environmental health officers. That is a very broad description indeed. The Joint Committee noted at paragraph 195 of its report that the evidence it received from the police and the Serious Fraud Office on the defence for the intelligence services did not suggest that the police and SFO believed that they needed any such defence for their own activities. Why then has an exemption for law enforcement agencies now been added to the Bill? In what circumstances is it envisaged that the police, Revenue and Customs, and local authority trading standards officers should be permitted to bribe people? Is there any evidence at all that the absence to date of such a power has hindered the effective performance of law enforcement functions? My third and final concern about Clause 12 is that in any event it does not contain the protection for the public interest contained in Clauses 13 and 14 of the draft Bill. The draft Bill confined the intelligence and security services exemptions to those cases where a prior authorisation to the act of bribery was given by the Secretary of State or a senior official. If law enforcement functions are to be added, prior authorisation should be by the Attorney-General. It is quite unacceptable for any intelligence officer of whatever rank, any employee of the CPS or any employee of a local authority carrying out law enforcement functions to be able to decide for themselves to carry out an act of bribery. Cases of bribery by public officials in order to carry out an intelligence function, a security function or a law enforcement function would, I hope we can all agree, be very rare exceptions. Any such departure from the rule of law must surely be carefully considered in advance by very senior officers of the state—not least to avoid any later dispute as to whether the officer was genuinely acting for official purposes, as well as to ensure that such conduct was truly necessary and proportionate. Paragraph 200 of the Joint Committee’s report refers to the evidence of the noble and learned Baroness, the Attorney-General. She emphasised to the Joint Committee that the prior authorisation procedure was an important safeguard. I respectfully agree. Those are my main concerns about Clause 12. I give notice to the Minister that I—and, I am sure, many other noble Lords—very much look forward to debating with him during the passage of the Bill whether Clause 12 is necessary, whether it is proportionate and whether it is consistent with the rule of law.