Bribery Bill [HL]

My Lords, it is important to have in mind the situation of facilitation payments that my noble and learned friend mentioned. The question of whether you put in something about dishonesty or corruption in relation to the conduct of the potential briber raises the very issue of whether you wish the Bill to include facilitation payments. If you include facilitation payments, they are not offered corruptly. If you want to exclude facilitation payments, you put in "corruption" and the Bill has that effect, but the two are very closely linked. At the moment anyway, I do not see much possibility of distinguishing them. As my noble and learned friend reminded us, the United States of America, with experience of its legislation, decided expressly to exclude facilitation payments. That is an important matter of policy. It is more than just a question of the drafting of this Bill: it is a fundamental question of policy about whether we go along with the United States or go in the way that I think the Bill, as presently drafted, suggests. Facilitation payments are a difficult class of payment. I mentioned some examples at Second Reading and other noble Lords mentioned examples too. The noble Lord, Lord Robertson of Port Ellen mentioned them to the committee and they are referred to in the committee’s report. They include no element of corruption. The easiest example to take is that of the man who turns up with a ticket, payment having been made for flights at an airport. There is an official handing out boarding passes. The man says, "I am absolutely entitled to a boarding pass and there is no question of anything being wrong in giving it to me because I am entitled to it". But the official responsible for handing them out says, "You’ll get your boarding pass in return for a payment". "Is that an airport tax?", the man asks. The official replies, "No. You have paid the airport tax. This payment is for me". The option is that you either pay it and get on to the aeroplane, or you do not pay it and he declines to give you the boarding pass and you can get no further. The question is whether we want that to be a criminal offence. It is an important decision. At Second Reading, the Minister explained that we want it to be a criminal offence. That is the essence of these amendments because, as I read them, they do not deal with impropriety on the part of the person concerned. Let us take Clause 1, dealing with the situation affecting P, the person who is supposed to be committing the offence. The impropriety referred to in case 1 is that on the part of the person receiving the money. The improper performance appears in subsection (2)(b)(ii). Therefore, the corrupt intent is being added as a condition of the conviction of the person who, in this case, is giving the money and not the person who is taking it. The problem is that, in the case I have given as an example, it is very difficult to see that the person entitled to get the favour is in any way corrupt, dishonest or anything of the sort. The person giving the money is doing so in order to obtain that to which he is entitled. Therefore, there is no dishonesty on his part in relation to this matter. The Government intend, as the Minister made clear at Second Reading—he will tell me whether I am wrong—that the facilitation payments should be covered. If they are, the idea of corruption is therefore out of place. On the other hand, I can see the arguments, persuasively put by my noble friend, trying to get at a crime which involves dishonesty, but there is a question of whether this case does involve dishonesty. That is the substantial and important issue, and it goes much more deeply than mere drafting.