Bribery Bill [HL]

My Lords, I was a member of the Joint Committee under the able chairmanship of the noble Viscount, Lord Colville of Culross, which made a very thorough examination of the draft Bill, heard many witnesses and published its report in July this year. In consequence, I come to the Bill now before us with some knowledge of the past legislation and the current proposals. I say to the Minister at the outset that I support this Bill. The Government have done well to tackle the need for better legislation to deal with bribery and I hope that we can complete the examination of the Bill before the general election. In the past decade, since the United Kingdom signed the OECD anti-bribery convention at the end of 1997, there have been a number of reviews of the United Kingdom’s bribery legislation, including two Law Commission reviews, as well as the draft anti-corruption Bill in 2003, which was not taken forward. Now we are on much firmer ground and I hope that we can achieve this better legislation. As this is Second Reading, I shall make some broad comments on the Bill. It is a major Bill and a clean-sweep Bill: it sweeps away entirely the Public Bodies Corrupt Practices Act 1889 and the Prevention of Corruption Acts 1906 and 1916 and replaces the common law offences. Clean-sweep Bills are quite rare—we do not have many of them—but I like them. In this case it was a wise decision to go the way the Government have gone. In place of these Acts, the Bill introduces two general offences: the offence of bribing another person and the offence of being bribed. It abandons the existing agent principal system and establishes a model based on an intention to induce improper conduct. We have to ask ourselves whether this is a better system. I say, unhesitatingly, yes. The existing agent principal basis has given rise to various difficulties in establishing how it applies in particular cases; the system now proposed is direct and more appropriate to the investigation and prosecution of this crime. Although most attention has been on cases or allegations about large defence contracts abroad, it is important to stress—this has not been mentioned much so far—that the Bill applies fully to home-grown bribery in the United Kingdom as well; its application goes right across the board. That is important. It also responds directly to the criticism of the United Kingdom, notably in relation to the OECD convention, and it should be beneficial to our international standing. In deciding what is expected of a person performing a function or activity, the test is what a reasonable person in the UK would expect. In a situation abroad, where United Kingdom laws do not apply, local practice and custom are not to be taken into account—this is an important point—unless that is required by the written law of the country in question. The net effect of this change is much stricter than the current arrangements. The Bill creates two new offences. First, it creates the separate offence of bribing a foreign public official. This is closely in line with the OECD convention, on which the definitions draw. It has a wide coverage. However, it is realistic to recognise that there may be cases where a person seeking a bribe is not, strictly speaking, a public official; he might be, for example, an influential member of a political party in the country in question. There are difficulties. None the less, the clause as it stands is certainly justified. Secondly, Clause 7 creates an offence of failure to prevent bribery, which can be committed only by relevant commercial organisations. Companies or partnerships must obviously examine their organisations to ensure that they do not risk breaching this new clause. I expect the first reaction of companies and partnerships to the arrival of the Bill will be to look at their organisation. The Bill has an extra-territorial application. In general, I do not like extra-territorial application but bribery is perhaps one of the clearest examples of potential offences that cross the territorial divide. Actions abroad are caught by the Bill if the person performing them is a British national, a person who is ordinarily resident in the United Kingdom, a UK incorporated body or a Scottish partnership. Finally, I have two points that are not in the Bill but which have been discussed already to some degree. First, there is the question of guidance on the Bill. I welcome the Government’s acceptance, in their reply to the Joint Committee, that guidance on the Bill should be available to commercial organisations. We may discuss this point and the timing more fully in Committee, but I note that the Government propose to follow the model of the Corporate Manslaughter and Corporate Homicide Act 2007 and are to publish guidance before the new bribery offences come into force. I quote the reply to the Joint Committee and I note that whatever we say in this House always has an influence. The noble Lord, Lord Bach, did not say, ""before the new bribery offences come into force"," but, ""well before the new bribery offences come into force"." We are always making progress as we go along. Secondly, I agree with the strict conclusion of the Joint Committee and with the Government that so-called facilitation payments should continue to be criminalised. However, like the noble and learned Lord, Lord Mackay of Clashfern, I have a certain sensitivity about the difficulties of this point. In this respect and in respect of corporate hospitality, it is important that the Crown Prosecution Service should respect very formally the principle of proportionality. This is important generally, but it is also important because the Foreign Corrupt Practices Act of the USA, although it is in many ways an excellent Act, none the less exempts from the bribery prohibition, ""facilitating payments for routine governmental action"." This, it is explained in a note from the US Department of Justice, would include such action as payment of bribes for loading and unloading cargo and similar activities. So it is a serious point. At the working level for companies that are perhaps not of vast size but have some external trade or contract, these sorts of payments are important; such companies need to be clear that they will be treated fairly. It is unusual to have a Second Reading debate that approximates to a love fest—I am sure that the Minister will take that on board—but this is a very good Bill and I repeat my view that, subject to the comments that I have made and what is going to be examined in Committee, including Clause 12, the Bill deserves to go on to the statute book.