Bribery Bill [HL]

My Lords, I too was a member of the committee which considered the draft Bill. I join in the tributes that have already been paid to the chairmanship of the noble Viscount, Lord Colville of Culross, who curbed a number of us—I put myself foremost among the offenders—from asking too many questions and conducted those proceedings admirably. This is a good Bill. It revises ancient legislation that is completely out of date and that does not cope with the present circumstances. I found the G8 St Petersburg summit communiqué of 16 July 2006 a very good statement of the current problems. That communiqué said: ""Large-scale corruption by individuals who hold senior executive, judicial, and legislative positions can have a devastating effect on democracy, the rule of law, and economic and social development. We recognize"," said the Governments concerned at the G8, ""that corrupt practices contribute to the spread of organised crime and terrorism, undermine public trust in government, and destabilize economies. Corruption by holders of public office can deter foreign investment, stifle economic growth and sustainable development, and undermine legal and judicial systems. The net effect of corruption is felt most directly, and disproportionately, by the poor"." That is a concise statement of the problem as it applies worldwide. My late noble friend Air Marshal Lord Garden, whose departure I much regret, was an adviser to Transparency International on the prevention of corruption in the official arms trade. On 14 December 2006, he said to this House: ""The United Kingdom has a slightly iffy reputation on the use of money to facilitate defence contracts. I should have thought that it was in the national interest to clarify that. If—and I say if—commissions are paid in a corrupt way, it makes for an inefficient defence industry, so we pay more at home for our defence equipment, and it undermines Governments overseas, so we reduce our security".—[Official Report, 14/12/06; col. 1716.]" That is a very wise insight into the problems of the defence industry in this country. In introducing the Bill, the noble Lord, Lord Bach, said that he disagreed with the suggestion that the existing law is fully compliant with international obligations. I take issue with him on that. Transparency International has pointed out problems but the OECD working group on bribery also has been active. It has, going back five years, made four demands of this country that we should revise our law. Whereas the signatories to that convention number 36, 35 had complied years ago, but we had not updated our law. The working group said: ""In light of the numerous issues of serious concern, the Working Group has requested the UK to provide quarterly written reports on legislative progress"." Furthermore, it said: ""Current UK legislation makes it very difficult for prosecutors to bring an effective case against a company for alleged bribery offences"." That was in its report in 2008. So your Lordships will appreciate that there is a problem which is recognised internationally and that this Bill addresses that problem. Perhaps I may first refer to the definition of bribery. The noble and learned Lord, Lord Woolf, said that what is meant by bribery is difficult to define exactly, and that is true. It depends very much on the facts and on the context in which gifts are given or awards made. I learnt my lesson very early on, as a pupil, when my pupil master successfully defended a local licensee on something to do with bottles—I cannot remember exactly, it was very small beer. But we succeeded and the licensee sent us both a crate of whisky, which was far in excess of the actual subject matter of the charge. My pupil master, who happens to be the brother of the noble Lord, Lord Roberts of Conwy, said, "One bottle I might accept, but a crate?". He sent the whole lot back and I learnt a very good lesson. However, I did not follow it entirely because once, in Hong Kong, I was provided at the end of a successful case with a silver plate. It was silver-plated actually, but it had on it an inscription in Chinese which said something about silver tongue or something. It was actually the name of a "Perry Mason"-type television programme, but they put it on this plate. I took it home and hung it on the wall very proudly until a Chinese visitor said: ""That is very, very nice and commendable Martin, but you have hung it upside down"." It is difficult to define bribery exactly. The noble and learned Lord, Lord Lyell of Markyate, said that this Bill is too complicated; that "improper" means a large number of things. Well so it does. However, it is only in the court that the facts and the context can be investigated and it is only then that one can determine what label one should apply to what has happened. What should always be remembered by your Lordships is that the prosecution rarely has to prove every ingredient in an offence. There is an issue in a case. Sometimes there are two issues, but generally speaking there is only one. Under current procedures a defence statement requires the defence to define the issue and then an agreed set of admissions will cover many of the facts which the prosecution would otherwise have to prove. That is modern criminal procedure. Clauses 1 to 5 can be reduced to a couple of simple propositions. First, was an advantage given or received—that might be the issue in the case. Was it to induce a reward or reward a person for the improper performance of a function? Secondly, is that function caught by the act? Is it a function that should be performed in good faith, impartially or in performance of a trust? That is really Clauses 1 to 5. One can pick out the particular ingredient a case is about, define it and simplify it for the jury. Although the wording of these clauses is quite complicated, in fact the case as presented in court will undoubtedly be refined to a very large degree. A number of issues have been discussed. I refer, first, to the question of guidance. On pages 46 and 47 of volume one of its report, the committee refers to the Foreign Corrupt Practices Act 1977 in the United States which provides that a rebuttable presumption will arise that acting in accordance with advice will mean that no offence has been committed. The Attorney General of the United States is required to provide an advisory service so that a company that is wondering whether a set of proposals could amount to bribery can go along to the Attorney General’s office and get advice. In Hong Kong, the Independent Commission Against Corruption has brought Hong Kong to the standing of third of the least corrupt countries in the world by its rigorous stamping out of corruption. It has a Corruption Prevention Department which created an Advisory Services Group in 1986 which has advised more than 3,000 private companies. The committee points out, as the noble and learned Lord, Lord Mayhew, mentioned, that there was not time to carry out a further inquiry to explore the ICAC in any detail. It is a body that I have personal connection with over a number of years. Something like an advisory service would be a very good thing for British industry. Indeed, the noble and learned Lord, Lord Mackay of Clashfern, pointed out that: ""The Department of Trade and Industry could give guidance. It would not be conclusive but it would be authoritative"." It so happens that this morning I decided to look at what sort of advisory service is provided by the trade and industry department. It does indeed have one, so I filled in a query form asking how to avoid bribery in a particular overseas country, and sent it off. I understand that it takes around seven days for a reply, and I shall inform your Lordships in due course if a response ever comes. The tax advisory teams of Her Majesty’s Revenue and Customs provide advice to companies and individuals on whether what they are doing is legal so that they can act accordingly. I was heartened, as was the noble Viscount, Lord Colville, by the reference of the noble Lord, Lord Patten, to strong ethical corporate structures as being the real key to preventing corruption, but I cannot quite go along with him when he says that no guidance will help in the long term and that you cannot rest on something written on a scrap of paper that can be cast aside and forgotten. There is some truth in that, but a proper advisory service might be a good thing. I turn now to Clause 12. The noble Lord, Lord Pannick, said that exemptions such as those outlined in the clause raise difficult and sensitive questions about the rule of law. That took me back to the statement made by the noble and learned Lord, Lord Goldsmith, in December 2006 where, in talking about the stop put on the BAe investigation, he said: ""It has been necessary to balance the need to maintain the rule of law against the wider public interest".—[Official Report, 14/12/06; col. 1712.]" That is an interesting balance because I would have thought that the rule of law was the overriding public interest. However, what the noble and learned Lord, Lord Mackay of Clashfern, has said about that is: ""If it is necessary in the public interest, a prosecution should not occur and agencies can inform the director accordingly"." To my mind, that is the way to go about it. If the security services have sensitive information and need to make a submission to, say, the director of the Serious Fraud Office, surely it is better that it is made at an early stage so that the relevant person, the Director of Public Prosecutions of whoever it may be can consider what is put before him and decide whether it is in the public interest that the prosecution should go forward. There is nothing unusual in that because the two-pronged test of the Director of Public Prosecutions is always this: is there evidence that makes it more likely than not that a prosecution will succeed, and is it in every case in the public interest that this prosecution should continue? How much better to leave it to prosecutorial discretion than to set out a provision that none of the other 35 countries which are signatories to the convention has. I am sure that it highlights the fact that our security services may go around bribing people, which is perhaps not a good thing. So surely it should not be in the Bill that defences of this sort can arise. We say that Clause 12 is quite unnecessary. It is right that the prosecutorial discretion will now rest with the directors of the various agencies such as the Serious Fraud Office, HMRC and the DPP. We do not agree that the Attorney-General should play any further part in an individual case. I know that the OECD does not control this country, but it has recommended in specific terms that we should ensure, in any amendment to our legislation, that the Attorney-General cannot give instructions to the director of the Serious Fraud Office about individual bribery cases. That is in no way binding upon us, but we should try to remove prosecutions from any political connection. I regard it as unhappy and unhelpful that the redefining of the role of the Attorney-General has been removed from the Constitutional Reform and Governance Bill now in another place, but that is an argument for another time. I have made some criticisms of the Bill. However, I repeat that it is a good Bill and we on these Benches will do our utmost to ensure that it goes through expeditiously before this Parliament comes to an end.