Bribery Bill [HL]

My Lords, the noble and learned Lord’s amendments seek to amend the general bribery offences by introducing the requirement that the person must either be acting with corrupt intent, or acting dishonestly to commit the offence. We are bound, of course, to take seriously any suggestions put forward by a lawyer as distinguished as the noble and learned Lord, who has served as Attorney-General. The noble and learned Lord has expressed concern about the complexity of the definition of bribery used in the Bill. We have common ground with him in believing that there should be as much clarity and certainty as possible in the formulation of these offences, but we would argue that his amendments will not achieve that effect. Indeed, the effect of adding just those few words—whichever variant one took—would be to alter fundamentally the basis on which the Law Commission, the Joint Committee and now the Government have decided to approach the offence of bribery. In a sense, that is part of the point made by the noble and learned Lord, Lord Mackay of Clashfern. He argues that, as far as the law is concerned, it is important that the word "corruptly" would, if added, make the position on facilitation payments much clearer than it is under the proposed law. I will come back to that. The noble and learned Lord has, with a true advocate’s skill, tried to persuade us that adding these words would have little effect on the strategy employed or the basis on which the Bill is arranged, whereas it would fundamentally change it. The concept of acting corruptly is found in the existing Public Bodies Corrupt Practices Act 1889 and the Prevention of Corruption Act 1906, but is not defined in either statute. We would argue that it has proved to be a vague and inherently difficult concept. Courts have expressed differing opinions on whether it involves dishonesty or "doing an act which the law forbids as tending to corrupt". The Law Commission concluded that the lack of clarity surrounding this concept weakened the effective application of the law. One of the main planks of the noble and learned Lord’s argument is that his concept of acting corruptly has withstood the test of time. But the analysis of the case law by the Law Commission suggests otherwise. The Law Commission also considered suggestions that the impropriety of the conduct constituting the offence should be linked to whether it was done dishonestly, but decided against such a link in its final report.