Bribery Bill [HL]

My Lords, the book of Ecclesiastes reminds us that there is no new thing under the sun, and bribery and corruption is certainly one of the oldest institutions known to man. It has riddled the civilisations of China, of Suma, of Greece and of Rome, and of the British Empire, in many respects. It lurks at the very foundation of every community and society in the world to some extent. The consideration given in the past 14 years to this matter has certainly been comprehensive and rigorous. Indeed, one could start earlier than that with the Salmon commission of 1976, which dealt with the matter, but the real genesis was the Nolan Committee on Standards in Public Life, in its report of 1995. From that point onwards, there has been an irony. One can identify 12 different stages from White Papers, reports, committee examinations—including the sterling work done by the committee chaired by my noble friend Lord Colville of Culross and the work, already referred to, carried out by the noble Viscount, Lord Slim. Therefore, one has the sense of legislative soil that is well harrowed, but somehow, the Bill ended up—if I may mix my metaphors—in a rather vulgar sprint, with more rush than would have been anticipated. Be that as it may, I am quite sure that the Bill is a progressive development and one to be greatly welcomed. I am sure that the Government were entirely correct in centring on the concept of proper or improper behaviour. Once one has the proper heart, core and kernel, the rest of the Bill falls into place. That is very much as happened with the Theft Bill 40 years ago, when the concept of appropriation suddenly took over from all the difficulties there had been with the previous Larceny Acts. Nearly everything else then fell into place. It may not be all that simple. The point has been made that the definition of impropriety may be embarrassingly wide in relation to certain prosecutions. I wonder whether the Government have thought carefully about including, in addition to the question of impropriety, the test of dishonesty. Dishonesty is well understood by juries; it was defined very clearly by the Court of Appeal in Ghosh 25 or 27 years ago. The House will remember the two tests. First, the jury has to decide the objective test: is the conduct that has been proven against the defendant such that, according to an objective view, one would regard as dishonest? That is test one. If the prosecution overcomes that hurdle, there is the second test, which is seeing through the eyes of the defendant. Did the defendant appreciate that it was dishonest—not according to his base ideas of honesty, but according again to the standards of ordinary, decent people? In other words, that is a totally objective test and a subjective test according to objective standards. That may sound complicated, but I do not think that it is. Judges and juries have been able to cope with that very well. Would we lose anything if we had such a test to clarify the meaning of that rather wide term "impropriety" in relation to the main structures of the Bill? I suggest not. There may be another reason for introducing a reference to dishonesty. The Explanatory Memorandum states that it is not anticipated that there will be a very considerable increase in the number of prosecutions, nor indeed that there will be any greater pressure on prison places. One may ask rather tartly: if you are developing a new mouse trap, what is the point if it does not catch mice? But that is not the point of this legislation; it is more about the deterrent effect that it will have and the new standards that it will more clearly endorse than the number of persons who will get caught by it. There was a note published by the Library of the House of Commons in April this year, dealing with the Bill as it then stood. It set forward this fact: between 1997 and 2003 the average number of prosecutions each year for this offence was 21. That is a very low figure, especially considered side by side with the average number of prosecutions for the offence of fraud in the same years, which was of the order of 23,000. Nobody would for a moment suggest that only 21 cases of bribery and corruption occurred in the United Kingdom during that period. Nobody would suggest that it was as low a figure as 210 or indeed 2,100. Offences of bribery and corruption, as every Member of the House appreciates, are very different from burglary offences; you know when those have happened. With rape offences, you will know when some of those have happened, as complainants all too often will not go to the police, although when they do the offences are recorded. The same applies with robbery and so many other offences. Bribery and corruption is not like that. There is often no conscious victim. There is often no overt evidence at all that anybody can track down. This is where we come to Clause 12. I have the utmost respect for the submissions made by the noble Lord, Lord Pannick, and the noble and learned Lord, Lord Woolf, in this matter. The defences deal with two main areas. One is entrapment, which is not the nicest way of going about a prosecution, nor something that juries like and appreciate. Nevertheless, in some circumstances it is the only way that the root of evil can ever be got at. In many cases the actual payment of money by authorities will be necessary, not because it is right to do so, but because all the other alternatives are worse. On that basis, we must have one of two things. Either one should have Clause 12, with all the checks and reservations, including the discretion of the Attorney-General and everything else, considered in this matter. Or we might consider including the test of dishonesty in relation to these situations. If you have the test of dishonesty, it may not be necessary to have Clause 12. The most pertinent remark was made by the noble and learned Lord, Lord Lyell of Markyate, when he said that it is not the law that is the problem, it is getting at these situations and exposing them. Unless there is a commitment by the community to invest money and human resources in order to smell out and root out these situations, then the main problem will remain with us. I would like to apologise to the House: in the Grand Committee, there is a matter involving the Welsh language, a subject very close to my heart. I would be grateful if the House would forgive me if I leave now—meaning no any discourtesy to anybody who is going to speak—for a matter which I hope will be dealt with shortly. It is not a complete defence, but I hope it will be a substantial mitigation.