Bribery Bill [HL]

My Lords, I add my welcome for the Bill. So many noble Lords have welcomed it that the last speaker referred to our debate as "a love-fest". I am not sure it is quite that, bearing in mind the number of detailed criticisms that have been made, but this is certainly a more soundly based attempt than earlier ones to create a comprehensive, effective law of bribery. It owes a great deal to the work of the Law Commission, especially its 2008 report with the rather odd title Reforming Bribery. I think I know what they meant; it was just that the semantics was slightly odd. The Government are to be congratulated on implementing a major Law Commission report. The Bill will assist in the battle against bribery in all part of our commercial and public life. I see it as significant for international trade, where bribery and corruption, if they exist, pollute the very basis of trust and integrity which must underpin healthy, mutually beneficial trading relationships. An expansion of world trade is, of course, highly beneficial to the people of the world, but that must be based on the real value of goods and services, not on backhanders that distort true competition. Clearly, if bribery in global dealings is to be adequately combated, improvements and greater clarity in our law need to be complemented by equally strong measures taken by our trading partners. Hence the importance, as other speakers have indicated, of according with the OECD convention and other conventions against bribery across the world. This Bill is concerned solely with criminal law, but perhaps I might mention something that I think other speakers have not so far referred to. I hope that Ministers can confirm that the civil law in this country can continue to have its uses in combating and acting as a deterrent to bribery. For example, if there is a contracting party whose agent has been given a bribe to induce him to place the contract with the bribe’s donor, the contracting party may sue to recover the bribe and, more importantly, can rescind and remove the effectiveness of the contract. The civil law, usefully, applies irrespective of any proof of corruption. I believe that the Law Commission was right to concentrate its attention on the value of criminal law in combating bribery. It was also right not only to propose two general offences—which have been described and might be summarised as active and passive bribery—but to propose the new, discrete offence of bribing a foreign official. The noble Lord, Lord Williamson, indicated that there may be problems with the phrase "foreign official", especially if that is defined too narrowly, because in many countries key people who have tremendous influence may not hold an official post that is registered in the local equivalent of Whitaker’s Almanac, but are none the less influential. The public increasingly resent any possibility of senior company officers trying to hide behind the corporate veil and avoid individual responsibility. I am therefore glad that the Government have accepted the Law Commission’s proposal to follow Section 12 of the Fraud Act 2006 by imposing individual criminal liability on any senior company officer—and that does not mean just directors—who can be said to have consented to or connived at the commission of either of those two general offences in the Bill. More controversially, Clauses 7 and 8 create a new criminal offence where a commercial organisation fails to prevent the offence of active bribery committed by someone performing services on its behalf. Parliament is generally more cautious about making a sin of omission a criminal offence, and rightly so, but—as others have pointed out—the organisation will have a defence if it has in place "adequate procedures" to prevent persons down the line associated with the organisation from engaging in bribery. There will be a need for a useful discussion in Committee on the guidance that the Government have said they will offer—and whether unofficial, non-statutory guidance to commercial organisations to assist business is sufficient. Your Lordships will recall that the Law Commission devoted some 20 pages of its report to justifying this new criminal offence, and it claimed support from the earlier report entitled Business Ethics, Global Companies and the Defence Industry proposed by the noble and learned Lord, Lord Woolf, who spoke earlier in this debate. The noble and learned Lord’s recommendation 9 involves the introduction of a proactive supervisory role at board level over decisions made further down the line that carry risks of unethical behaviour. The noble and learned Lord said that company boards must forbid so-called "facilitation payments". The use of criminal law is justified by the need to deter companies from giving any support to a culture of bribe-taking. The statements of the noble and learned Lord, Lord Woolf, have been given added impetus by the Law Commission report and now by this Bill. There is only one other matter that I want to mention because it has been referred to by a number of speakers. I was, as I usually am, impressed by the speech of the noble Lord, Lord Pannick. It was a speech of principle. He was concerned with the rule of law. He was concerned that Clause 12 adumbrates a number of defences that would seem to contravene the rule of law and, perhaps even more important as a practical point, that the Government have not really showed chapter and verse what the occasions are when bribes would have been helpful and would have been useful under some sort of public interest rubric. I was also interested in the points made by the noble Lord, Lord Patten—not at the moment in his place—in which he referred to examples where a bribe is made to an informer for information and some terrible disaster occurs if that bribe is not given. The noble and learned Lord, Lord Woolf, thought that there was something in that—he will correct me if I am wrong—because he indicated that we do not really need these defences so long as the person whose consent is required for prosecution, such as the Attorney-General, is able and entitled, in the public interest, not to go ahead where the public interest suggests that that would be a bad thing to do. I welcome the Bill. I look forward to the Committee debates.