Bribery Bill [HL]

There may even be cases that were brought before the court but which the jury for some reason or other acquitted because of the state of the law. Those are matters that would not be in the law reports in the same way as the cases quoted in the Law Commission's report. I must move on. 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 it decided against such a link in its final report. The Law Commission was particularly concerned that it would effectively create a defence that conduct that would elsewhere have been a corrupt action was undertaken only because the business environment was known to be steeped in corruption. For example, expert evidence might be provided as to the typical nature of the payments made in different business environments overseas. That would also weaken the effective application of the law. The Law Commission considered the alternative approaches to the formulation of the general bribery offences in great detail and consulted widely on them. Its report, however, recommended that a model based on improper performance was the best possible option. Under that model, an offence is committed where a financial or other advantage is given to induce or reward impropriety in relation to what is described as a relevant function or activity. There must be an expectation that the relevant function or activity is to be carried out in good faith, impartially, or the person performing it is in a position of trust. Following that model, Clauses 1 and 2 set out two active and four passive bribery cases that describe the conduct of the payer or the recipient that will constitute a bribery offence. Those cases can be readily understood and provide the required legal certainty. I recognise that the terms "good faith", "impropriety" and "position of trust" are not defined in the Bill, but they are readily capable of being understood by juries in the relevant context of the case without further elaboration. I now come to the Joint Committee, on which many noble Lords present and others served with distinction. The Joint Committee on the Draft Bribery Bill endorsed the "improper performance" test proposed by the Law Commission. It commented that, ""the reliance on a reasonable person's expectation of "good faith", "impartiality" and "trust" represents a careful balance between simplicity, certainty and effectiveness"." As a consequence of the Joint Committee’s report on the draft Bill and the Law Commission's view, when publishing the Bill the Government came to the view that this is the right approach. The noble and learned Lord, Lord Lyell, asked some questions about planning gain in particular, which I must attempt to answer. As he knows, Section 106 of the Town and Country Planning Act 1990 allows planning gain in the UK. It obviously follows that compliance with the statute will not amount to improper performance. The noble and learned Lord asks very pertinently what are our intentions regarding guidance. I hope that we will shortly come to a debate on guidance. My noble friend Lord Tunnicliffe will outline our approach in more detail and some of the matters that we intend to cover in our guidance. We hope to expand on this in time for Report but we also live in hope that we will reach that stage of the Bill by the end of this month of January. Everyone knows the constraints to getting this Bill on the statute book. I cannot, therefore, undertake to have a draft of the guidance available by the time the Bill leaves this House. On the baggage-handler example, we find the answer put forward by another noble and learned Lord and previous Attorney-General—the noble and learned Lord, Lord Mayhew—fairly convincing. I am left with the arguments referred to by the noble and learned Lord, Lord Mackay of Clashfern, in relation to facilitation payments, and the speech he made on Second Reading also covering that issue. He is right that we do not live in a perfect world—we are unlikely ever to do so. However, without sounding too corny, trying to make it a little better in this regard is not a bad motive. That is what the Bill does, and it is intentionally an attempt to strengthen the law in this field so that it catches people who are guilty of improper conduct. I do not believe that anyone will disagree that that is a good thing. The noble and learned Lord points out that we have to make up our minds about facilitation payments. That is his main point, and he says that we cannot have it both ways—we cannot say that facilitation payments are fine and at the same time want to strengthen the law. The point I want to make is that the official handing out the boarding passes, in one of his examples, will undertake improper conduct by accepting the facilitation payment. Therefore, the receiver of the bribe will have acted improperly. If the person paying the bribe believes this to be the case, he or she will also be committing bribery under Clause 1(3) of our Bill. That is what we intend. We do not believe that under this law the question of whether a person is liable will be different from that under the current law.