Bribery Bill [HL]

The noble Lord brings me on to the next part of my probing. In his reply at Second Reading, the Minister made a number of points about both guidance and proportionality. It is important to remember that there are two tests for the prosecution of any offence. The first is whether there is a sufficiency of evidence to give rise to a realistic prospect of conviction before a jury. The second is whether it is in the public interest, which will be much affected by a large number of matters. One may be that it is too trivial to prosecute; another relates to the person committing the offence. Those of us who are older well remember the unfortunate Isobel Barnett, who became a kleptomaniac and was, I think, eventually prosecuted—I have a horrible feeling that she killed herself. Those sorts of things raise very difficult public-interest questions. Before you give a tip to someone to do something slightly out of the ordinary, should you say to yourself, "I am committing bribery if I give this tip"? Perhaps you are in a hurry for a good or a bad reason and want help from a servant of the airport. If you want to give them a tip in circumstances where the noble Baroness, Lady Whitaker, says it should be the offence of bribery, are you to say to yourself, "It is only the fact that I might be prosecuted which prevents me. I am actually committing a criminal offence"? That is my problem. I do not believe that we would commit a criminal offence if the word "corrupt" is inserted. If you look at it like that, will a jury say that that kind of behaviour is an offence, although it may be justifiable or despicable in some cases? The behaviour of a cigar-smoking fat cat who gives a tenner just to get personal advantage is not attractive. It is rather improper: I would not like to be seen doing it. But is it the offence of corruption? Is that what we are dealing with here? That needs to be clear in the Bill and not simply left to prosecutorial discretion. That deeply worries me. The noble Lord, Lord Borrie, may be able to throw light on a planning example: a large store wants to build a superstore on the edge of a medium-sized town, which will have a substantial effect on the high street. Outside Hemel Hempstead, one of the towns that I represented and my first constituency, there are a number of superstores. To a great extent, the main part of the town now consists of estate agents and charity shops. Much business has moved away. Small businesses cannot possibly match the planning gain that a big firm can operate. What is a planning department expected to do? I think that it would be expected to act impartially, but perhaps it is not. That raises one of the difficulties as to the intent of this Bill. I do not think that people would say that a planning department is being corrupt in accepting planning gain on behalf of a community, even though it is heavily influenced by it. It raises a grey area. If the word "corrupt" is added, people would say, "No, it is perfectly clear that this is not corrupt". But if you break down impropriety into its factors, it probably matches up with all the factors and you are left with relevant expectation. How do you decide what is relevant expectation? In civil law, that is fine. It is well understood that a council will take that sort of decision, and people accept it. However, we now introduce a criminal aspect to this and say that the same conduct matches the evidential requirements for criminality and that it is only the prosecutor’s individual judgment that stands in the way. Although I was not able to take part in the debate, the same problem came before this House in relation to the Equality Bill. In the other place, my right honourable friend Michael Howard made the point that it is Parliament and not guidance from government that must lay down the law. I shall come to a close shortly but I look forward to seeing the guidance, about which there are amendments, and it would be of very great help to our debates if at least the first draft of the guidance were available to this House before Report. We would then be able to understand better what is being dealt with in black letter law in the Bill and what is being dealt with in guidance. My final point concerns facilitation payments. We should remember the United States’ Foreign Corrupt Practices Act. The Americans have in many ways rightly been pushing bodies such as Transparency International to broaden international standards of conduct. That is a very good thing and I strongly support it; I am not trying to put a spanner in the works. However, 11 years after the FCPA of 1977, a major amendment was introduced in 1988 allowing facilitation payments, and questions such as the one raised by the noble Baroness, Lady Whitaker, in relation to a tip or bribe would be dealt with by the facilitation payments aspect of American law. I myself am not very keen on the idea of facilitation payments but, although I am not going to table any amendments to suggest that we have them, they do leave a lacuna. I hope I have said enough to show that this is a serious issue. I am not trying to put a spanner in the works; I am trying to improve the Bill by making it clearer and using language which is much better tried and tested than some of the comment on it suggests. It has caused no practical problems in the past and would, in my opinion, stand us in good stead in the future.