Bribery Bill [HL]

I hope that the noble Earl will not press me on that tonight. It is one of the matters that we will have to consider in deciding what our attitude is towards an offence under Clause 7. However, it is an important point. I turn to the failure on the part of a commercial organisation to prevent bribery, joint ventures and syndication. The noble Lord, Lord Goodhart, referred to this. He asked about the operation of the corporate offence in relation to the activities of a joint venture over which a company might not have real control. The noble and learned Lord, Lord Mackay, mentioned this point too. Clause 8(4) of the Bill makes clear that, whether a person or body was performing services on behalf of another, ""is to be determined by reference to all the relevant circumstances"." It is indeed possible for one person, or a number of people, to be deemed to be performing services on behalf of more than one company. That is sensible if the Bill is to be effective. It depends on the circumstances but it may be that a bribe by a person performing services for one company in a joint venture is rightly regarded as being paid in connection with the business of any of the companies involved in that venture. Our purpose is clear; we want to encourage organisations which are involved in joint ventures to ensure that they are satisfied that adequate procedures are built into the arrangements for their joint venture. I need to point out that, before an organisation can be held culpable under Clause 7, the prosecution has to prove that the bribe was paid with the intention that business, or an advantage in the conduct of business, be obtained or retained for that organisation. Where this connection cannot be made the organisation will not be guilty. I will say comparative little about Clause 12 tonight. I am delighted to see the noble Lord, Lord Goodhart, in his place. I thank him and his committee again for their report. A number of issues arise around Clause 12. I was extremely grateful for the speech of the noble Lord, Lord Patten, at least as far as it concerned this particular clause. He is not absolutely alone. He has me for company at the present time, in defending Clause 12. The first issue is whether Clause 12 is drafted too widely. My noble friend Lady Whitaker believes it is and many other noble Lords think it is too. She was kind enough to acknowledge that we had already come a long way in meeting the reservations of the Joint Committee. A similar point has been made by Transparency International. I remind the House that the defence would not cover conduct that would amount to bribery of a foreign public official. Our objective is to ensure that law enforcement agencies, the intelligence services and the Armed Forces can continue to undertake their important functions effectively. There will be occasions when conduct would amount to an offence under the Bill in order to secure intelligence critical to our national security or to ensure the safety of military, intelligence service or law enforcement personnel. It would not be appropriate to criminalise that conduct. However, any person wishing to rely on the defence would have to demonstrate that his or her conduct was necessary in any given case. I shall quote from what Transparency International said in its briefing to noble Lords on Clause 12; the noble Lord, Lord Patten, referred to part of this in making his point: ""The Government’s earlier draft Bribery Bill provided for authorisation by the Secretary of State for bribery by UK security services. The JSC heard that the OECD Working Group on Bribery had never encountered any law anywhere that expressly authorised bribery. The JSC opposed the proposal on the ground that the Bribery Bill was not the appropriate vehicle to extend the security services’ powers to contravene the criminal law. The Government has responded to the JSC’s recommendations in two ways: (a) instead of giving a wide authorisation to the security services to pay bribes, there is now a more limited defence to prosecution; and (b) Section 12 identifies specific areas where benefit-giving might be considered to be for the public good: e.g. police transactions with informers, military actions in the course of armed conflict and security services. TI-UK would on balance prefer the Clause 12 to be omitted; but accepts that the Government has responded positively to the JSC’s recommendations"." With regard to the accusation that the blanket defence is much broader than the authorisation scheme of the draft Bill, it is right that the authorisation scheme did not cover the Armed Forces or law enforcement agencies, but the authorisation scheme of the draft Bill allowed a much wider exemption to the provisions of the Bill because that scheme allowed for class authorisations that could provide cover for a range of conduct by a range of people associated, for example, with one or a number of operations conducted by the security services, which could subsist for six months and could be renewed for another six months. In contrast to the authorisation scheme, anyone who bribes will be guilty of the offence unless that person can prove that the defence applies. The defence is case-specific and ensures that the necessity or otherwise of the conduct is tested by reference to the roles of individual people and the particular circumstances of individual cases. The noble and learned Lord, Lord Woolf, and the noble Lord, Lord Thomas of Gresford, among others, questioned more broadly whether the clause was needed at all; the noble Lord, Lord Pannick, certainly did so in his powerful speech. It is questioned whether the Clause 12 defence of the legitimate purposes of the state is necessary, and it has been suggested that it would be better simply to rely on prosecutorial discretion. Leaving aside broader issues of whether Clause 12 is too broadly set at the moment and includes too many people and too many groups, and dealing with the question of whether we need a Clause 12 at all, I begin to put the case now for the clause. Those who are afforded defence under the clause exercise significant functions on behalf of the public. It is indeed a sensitive area, as the noble Lord, Lord Pannick, reminded us. It is right that the law should afford those people who undertake important functions the reassurances of a defence at the outset if the effective discharge of their functions necessitates conduct that would otherwise amount to an offence. In conjunction with the Code for Crown Prosecutors, the provision, which gives a clear and transparent statement of the circumstances in which a person otherwise liable for bribery has a defence, would assist prosecutors in deciding whether a case should proceed. Transparent is an important word here. In the specific context at issue, we think our clearer and more transparent approach is more appropriate than allowing such decisions to be made with broad discretion alone. In other words, if the senior prosecutor on such a case decides to prosecute, the defendant should be able to run this defence in front of a jury. I note the well made criticism that no examples of where this might be material have been given to the Joint Committee or by me to the House today. It is an important point which I will take away to see whether it is possible to bring those examples to the notice of those in this House interested in the Bill. Clearly, we will return to Clause 12 and other matters in the Bill. My noble friend Lord Borrie asked whether the civil law will still have a role in the fight against bribery. The answer is yes, it certainly will—the Bill does not affect the civil law. I hope I have dealt with some of the points that noble Lords have raised. Those points will come up in Committee. I thank the House again for its sympathetic reception of the Bill and look forward to debating further matters in Grand Committee after our Christmas break. Bill read a second time and committed to a Grand Committee.