Bribery Bill [HL]

Yes, indeed. I know and deeply respect the noble Lord’s work for Transparency International. It is not the membership of Transparency International of the noble Lord, Lord Thomas, which I was referring to, but a very pertinent comment that he made at Second Reading. He said that this could all be sorted out in court. He said that by the time we get to court, what might seem complex on paper will all seem clear. I will come to that in a moment. I say to Transparency International: do not worry. I am not putting this in to make it more difficult to convict guilty people. I am putting it in to make clear what the Bill is about. It is the Bribery Bill and, for more than 100 years what the courts have been dealing with is bribery and corruption. Those words have always been an essential part of the legislation. Yes, there has been some discussion as to whether corruption involved dishonesty. I have looked at all the cases and, with the greatest respect to, I think, Professor Lanham, it is unfair to the courts to say that the understanding of the word "corruption" is in "impressive disarray". There have been times when learned judges have said that it imports the concept of dishonesty. There have been other times when it has been said that it was unnecessary to bring in the concept of dishonesty. I am much indebted—as, I think, the Committee would acknowledge that it is indebted—to the work of Colin Nicholls QC. He has written probably the standard work on this subject and has made amendments and prospective amendments to it. He has kindly provided these to the Committee; I am sure the Government and those assisting the Minister will have them. I know Colin Nicholls well, and I respect him very deeply. We have worked on cases together on subjects that bring in his expertise. He is extremely thoughtful. One of the things that he has done for the Government—I have not put this down as an amendment because I want to concentrate on the key point—is to redraft the opening clauses of the Bill in a way that makes them easier to read. I say that with all respect to parliamentary draftsmen, who have done a skilful job. At this stage in our consideration of the Bill, however, I am disinclined to try to redraft the first four clauses. I am not saying that it could not be usefully done, but I ask the Minister to get his team to reflect on it, because in many ways Mr Nicholls’ redraft has much to recommend it. I return to the advantages that will be gained by making it clear that corruption and bribery still mean very substantially what they have always meant. Without that, the use of the word "improper" may cause considerable difficulty. I am sad to see that the noble Viscount, Lord Colville of Culross, cannot be with us on this occasion; no doubt he will play a part at other times. The primary source of statutory interpretation in every case is the natural and ordinary meaning of the words that Parliament has chosen to put into a Bill. The words that we are considering here are principally "corruption" and "improper" or "impropriety". In the most recent version of the Shorter Oxford English Dictionary, the word "corruption" has other meanings, such as bodies corrupting after death, which are obviously completely irrelevant, but as soon as you get to the area of criminality, you find under "corrupt" as a verb: ""to induce to act dishonestly or unfaithfully … to bribe"." That is the meaning of the word which the Law Commission, as I pointed out in my earlier speeches, said is understood by 95 per cent of the population. I was quite impressed to see that it put the figure so high, but people understand bribery and corruption. Hansard will not be able to write down what I am about to do, but jurymen will well understand the gesture of the backhander. They know that it means bribery and that that is corrupt. They are swift to see it, and they are quite rightly ready to convict for it. It has not caused trouble in the past. I specifically asked the new Director of Public Prosecutions, Mr Keir Starmer QC, to let us know of any instances in the past 15 years when it had caused any problem. He has written to the committee—I have the letter here; the Minister will certainly have it—saying that he knows of no case in which it has caused any difficulty in the past 15 years. I was quite closely involved in this whole area when I became Parliamentary Private Secretary to Sir Michael Havers in 1979, when we were looking at this whole business of prosecuting the broader areas of fraud. I personally know of no cases in the past 30 years where the legislation, for all its faults and overlapping, which could be tidied up and tightened up quite usefully, actually caused difficulties in prosecution. If the Minister can bring forward examples, it will illuminate the work of the Committee, but I do not know of any such cases. I have looked at all the cases that deal with the question of conflict between the words "bribery" and "dishonesty". Those cases are wonderful lawyers’ stuff, in which great names that I remember from my earlier days, such as Lord Hutchinson of Lullington, who was a very famous defender, were putting forward all kinds of wonderful arguments about why the learned trial judge, learned recorder or whoever should or should not have mentioned the word "dishonesty". I learnt from that, and revised what I said at Second Reading. In the end, what the courts came down to was not to mess about by adding unnecessary concepts. Corruption probably does incorporate dishonesty, as it does in the dictionary definition that I just read out, which says, ""to induce to act dishonestly or unfaithfully"." The ordinary dictionary meaning incorporates it, but the courts said, "Don’t muddy the waters. Corrupt means tendency to corrupt", and that is a straightforward meaning. That has a lot to recommend it over complete reliance on the word "improper". If we look at the natural and ordinary meaning of that word from the same volume of the most recent Shorter Oxford English Dictionary, there are three different meanings. It can mean, ""incorrect, inaccurate, irregular, wrong"," or, ""unsuitable, inappropriate"," or, ""unbecoming, unseemly, indecorous"." Then there is a wonderful quote from the famous writer Santayana, who said: ""This deportment, undignified on weekdays, was positively improper on Sundays"." I say that only to give the Committee a little pleasure, but it is obviously a very long way from the criminal context, which is being built around the word now. I am not seeking to dismantle that context or take away what parliamentary draftsmen and the Law Commission have skilfully and with great effort constructed. I am simply seeking to group them together with one other important concept, which has stood the test of time, which is the concept of "corruption". If I am successful, or if the Minister finds favour and we go away and look at this, we shall not be alone in the common-law world. Again, I am indebted to Colin Nicholls QC for this. In the United States federal code, the essence of the offence of bribery is that it should be done corruptly. The object must be to induce the recipient to misuse his official position, and inclusion of the word "corruptly" denotes an "evil motive or purpose". That idea of evil motive or evil mind was picked up by Lord Chief Justice Parker when one of these cases came before him. Canada, New Zealand and South Africa all include the word "corruptly" without further statutory definition. In Australia, the offence requires mens rea or a criminal mind, although interestingly at the federal level they choose to use the word "dishonestly" rather than "corruptly". However, Australian states variously use the words "dishonestly", "corruptly" or "improper". As I said, I looked at the cases right up to the level of Lord Chief Justice and the one most often referred to is the very one to which the Minister referred when he wrote to us after Second Reading—I have his letter here. It is the case of Cooper v Slade of 1858, in which it was said that to do something corruptly is to do an act that the law forbids as tending to corrupt. So, again, there is a concentration on straightforward language which is well understood. I shall deal with the practical problems and will then sit down. The practical problems were raised partly by the noble Lord, Lord Thomas of Gresford, to whom I have referred. I agree with the noble Lord that, particularly in a great many of the more serious cases, when a case gets to court it will be possible to slot the facts into the fairly complex structure of the present first five clauses of the Bill. They have to be slotted into a structure which basically falls back on five or four other concepts. One is "good faith". I do not think that that is too difficult; it is pretty clear whether someone has operated in bad faith. The second is "impartially", which is quite difficult, and I shall come to a planning example in a moment. The next is "breach of trust". That may be clear because there may be very obvious cases where people are paid money to break trust, but breach of trust is a slightly more complex idea. When we look at what is regarded as "improper performance", the Bill tells us that it is performance in breach of—and I am about to produce the clearest words in the English language—a "relevant expectation". That may be regarded as irony, and it is always dangerous to use irony in Parliament, but what is a relevant expectation? In Clause5, we find that a relevant expectation is what a reasonable person would expect. I come to the interesting exchange at Second Reading between my noble friend Lord Waddington and the noble Baroness, Lady Whitaker. My noble friend personalised it to himself but I shall not personalise it in any way. He said that if someone arriving at the baggage-claim area of an airport wanted to get away and paid a tenner to one of the baggage-handling staff to go round the back and find his bags, that surely would not be intended to be caught by the Bill. In a moment, I shall ask the Minister what he has to say about that.