Bribery Bill [HL]

My Lords, as has already been anticipated by the noble Lord, Lord Bach, I shall begin by making a disclosure of my position as chairman of the committee that investigated ethical standards in the company BAE. My experience in that capacity makes it obvious that I should, and do, welcome the Bill. Legislation of this quality was sorely needed, and it is my hope that it will play the part that the noble Lord, Lord Pannick, indicated, by helping to restore the reputation of this country. I have no doubt as a result of very instructive evidence that I received from Transparency International and others, including the OECD, that the lack of legislation was something that they were very concerned about, because they felt that this country was failing to perform its natural role as a global leader of proper ethical standards. I therefore wish the Bill a speedy enactment. I do, however, acknowledge that the difficulties of producing a workable Bill are great indeed, and obviously the history explains in some way the delay that has occurred in producing a draft Bill that is suitable to come into law. From my perspective, looking at the Bill as a whole, I believe that it is one that we should readily accept. However, as a lay member of the Constitution Committee I draw attention to the committee’s report and suggest that, when one looks at Clause 12, there is a weakness in the Bill in its present form. I would not base my criticisms of Clause 12 on who is included or not included but would adopt a more holistic approach by suggesting that this provision is not needed. I would suggest that the defence is put there no doubt to give reassurance to those who are referred to. However, if the defence were to be available—and a very heavy burden is placed on those who seek to rely on this defence, having regard to it being necessary to do so—I would be confident that the Attorney-General, if it be the Attorney-General whose consent was required, or one of the three directors who are referred to in the Bill, would consent to a prosecution. It seems to me that if it was clear that what was done was necessary in the public interest, then that is not a situation when prosecutions should occur. It should be no problem for the agencies referred to to be able to inform the law officer or director concerned that that is the position. As to whether it should be the Attorney-General or one of the directors concerned, I would support it being done by the Attorney-General. Recent experience has shown that there are great benefits in the person who has the onerous task of exercising that responsibility being clearly responsible to Parliament. It is also beneficial for Parliament to be able to question why a consent has not been given. Furthermore, I suggest that the message given by the presence of the defence will be seized on by detractors of this country, in so far as their activities in relation to corruption are concerned, as not giving the necessary support that those who want to eliminate corruption would expect. The other matter I want to refer to is guidance. Normally, it is not desirable for guidance to enter into areas of criminal law. On the evidence I heard in the committee, I have no doubt that a case can properly be made that this is an exceptional Bill in this respect. What is meant by "bribery" is particularly difficult to define exactly. It is no doubt because of those difficulties that the Minister indicated in a letter of 8 December this year to the noble Lord, Lord Goodlad, chairman of the Constitution Committee, that it is the intention of the Government not only that there should be guidance but that the guidance should be issued before the legislation is brought into force. If the Government have given an assurance of that nature, which I have no doubt the Minister will be happy to confirm today, then it is of not great significance whether it is statutory or non-statutory guidance. What I apprehend will happen is the very difficult situations that can arise will seriatim be the result of decisions by those who have responsibility in this area. A common law will then develop with examples of situations which fall on either side of the line. That there has to be a line, and that it is a grey and indistinct line, is beyond doubt. One already knows of the situations that can occur: we have heard of one example, and I could give many more, showing that the industrial world is not sure how this legislation is to be applied. That it should be applied is of great importance. It is right, as the noble Lord, Lord Patten, indicated, that there has to be a change of culture inside companies. It is very important that people in these companies should realise what they have to focus on. In practice, what is or is not corrupt is very easy to identify even though it is difficult to define. In particular, it has to be clear that for bribery it is not a sufficient justification to say, "I could not get the business otherwise". If you have to offer a bribe to obtain business, any company concerned for its reputation will decide not to do that business. That has to be the clear message. It is difficult, in producing a criminal offence, to give that message, but it has to be made clear in guidance. So I welcome that aspect of the Bill.