My Lords, I enthusiastically follow my noble friend’s encomium on the chairmanship of the noble Viscount, Lord Colville of Culross. It was a great privilege to sit on his committee—and also rather good fun.
Many of the points that I might have made on this important Bill have already been made by noble Lords. I hope that brevity will not seem superficial. I cannot refrain from making at the outset of my brief remarks a disgruntled complaint about the rushed pace at which we were obliged to work. Even the Government called it a very challenging timetable. They can say that again, although I hope that they will never have to.
The whole point of a joint scrutiny committee is frustrated if it is not given a reasonable time for its work. I think that the Government acknowledge that we should have been given a minimum of 12 weeks. We were given 10. In consequence, some aspects of our work, notably with oral witnesses, had to be inappropriately curtailed. This was a pity, because the great merit of the Bill and its proclaimed purpose is that it provides for a new scheme of consolidated bribery offences, to cover bribery here and abroad, in place of the hotchpotch of legislation—referred to already—going back at least 120 years. The Minister said that it went back to Magna Carta. This is a long-called-for undertaking which is well worth taking time over to be sure that we get it right.
The definition of bribery in the early clauses of the Bill might have yielded some of its undoubted complexity had we had more time to explore the matter. I am afraid that I continue to find it a real candidate for a cold towel around the head, and I do not envy those who will have to explain it to a jury or, in the case of legal advisers to corporations, to companies. They may well be hard pressed to explain the Act with the confidence required of them by their employers. For my part, at any rate, I shall await with a good deal of concern progressive news of how the definition works out.
It would, however be graceless not to match that disgruntled complaint, and perhaps to exceed it in importance, by congratulating the Government on abandoning the old requirement of a principal-and-agent relationship and, instead, adopting a conduct test. Time will tell whether hingeing that test upon the concept of improper performance of a relevant function or activity will prove more serviceable than relying on the simple—or at any rate, single—adverb "corruptly". I note the evidence cited by the noble Viscount, Lord Colville, on the varying ways in which courts have treated that. It was obviously an important point.
I am also pleased that for the specific offence of bribing a foreign official the Government have provided that the conduct in question will amount to bribery when the official is neither requested nor required by the applicable written law to be influenced by the offer, promise or giving of an advantage. In other words, it has to be by written law for the conduct not to amount to bribery; evidence of established but unwritten custom or whatever will not suffice to exclude it from bribery. We went into this with witnesses with some care because it is such an important matter—in the commercial context, in particular. We elicited from them that this would be an appropriate and practical formulation and I am grateful that the Government have adopted it in this amended Bill.
Thank goodness, too, that in the new offence targeting companies which fail to prevent bribery by persons acting on their behalf, the Bill no longer focuses on whether a "responsible person" was negligent rather than on the collective failure of the company to have in place adequate anti-bribery procedures. I am grateful for the assurance that we will have guidance in that regard, and I agree with the noble and learned Lord, Lord Woolf, that it does not matter too much whether the guidance is statutory or otherwise. Keeping the concept of negligence would have introduced some quite superfluous complexity when, as I have already suggested, complexity is not exactly in short supply in this Bill, and I am very glad that the Government now agree.
We have heard a great deal about Clause 12 and I do not need to repeat it, save to say that I thought that the noble Lord, Lord Pannick, made an absolutely devastating criticism of the decision to keep it. I think that that is right and I listened with much sympathy to the speech of my noble friend Lord Patten. However, I think that we were right to recommend that the clause be removed from the Bill on the basis of the evidence that had been given. It is worth reminding the House briefly of what is said at paragraph 202 of our report: ""Transparency International UK told us that any decision to pursue these proposals should be taken through a more appropriate piece of legislation"."
I warmly agree with that. Transparency International said: ""While we welcome the Government’s openness in acknowledging that bribery may be used by the security services, we have the gravest doubts as to whether any worthwhile long-term national interest is served. If the security services can make a case for such an ‘opt-out’, they should present it for appropriate parliamentary scrutiny; and it should form no part of any general law of bribery"."
I suggest that it is very hard to argue against that. We said at paragraph 203: ""We heard no persuasive evidence of a need for the domestic intelligence agencies to be granted an authorisation to bribe. Neither are we persuaded that this draft Bill is the appropriate vehicle to extend the security services’ powers to contravene the criminal law"."
The noble and learned Lord, Lord Woolf, made a very telling point when he said that if it can be shown that it is in the public interest for such a course to be taken, that militates conclusively against a prosecution being authorised. That is another good reason why the Attorney-General should retain the jurisdiction that she has at present.
Lastly, and not only as a member of the well-known ex-Attorneys club, I was very pleased to read in the Government’s response to our report, at paragraph 25, that they do not now intend to bring forward any legislation relating to the Attorney-General. As my noble and learned friend Lord Lyell of Markyate said today, parliamentary accountability demands that the Attorney-General’s constitutional role remains in place.
We have waited long enough for an acceptable anti-bribery Bill to meet both our domestic and our international requirements. My strong feeling overall is that this offering deserves our warm support and that we should now get on with seeking to make it even better.
Bribery Bill [HL]
Proceeding contribution from
Lord Mayhew of Twysden
(Conservative)
in the House of Lords on Wednesday, 9 December 2009.
It occurred during Debate on bills on Bribery Bill [HL].
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715 c1110-2 
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2009-10
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