Bribery Bill [HL]

My Lords, the previous debate having made it clear that we are broadly content with the approach taken in the drafting of Clauses 1 and 2, I wish to explore the operation of the third offence in the Bill—that is, bribing foreign public officials. I propose three simple amendments. In moving this amendment, I shall also speak to Amendments 6 and 7. As I think the Committee will recognise, they are merely probing amendments to allow your Lordships to consider the offence, under Clause 6, of bribing foreign officials. Much of the way in which Clause 6 is designed to operate depends on what is allowed by the written laws of the foreign country in question. I am aware of the recommendation by the Joint Committee that the Bill should refer to "written law" to avoid any loopholes. There is much merit in that approach and I do not seek to overturn or undermine it. The three amendments which I have tabled refer more to the behaviour of the person who might be said to be offering the bribe, called P in the Bill; namely, that they would be acting with a corrupt intention to gain an undue advantage in business by offering an improper financial advantage. That may be overloading somewhat on the nefarious adjectives, but will the Minister explain clearly where the distinction will be drawn in deciding what bribery is? The explicit reference to the written laws means that established custom and practice would not be taken into account. For example, if it is established practice for a ship’s captain to pay a harbourmaster in a foreign country what we might euphemistically call an "unofficial" fee to dock and unload, I am sure that the Minister would agree that that would amount to a facilitation payment. Noble Lords will know that the United States, for example, has a defence where small facilitation payments are involved. I, however, share the view of the Joint Committee that facilitation payments should remain criminalised, but by focusing on the intention of P and the nature of the payment, it may be easier to retain the concept of proportionality in prosecutions. My amendments would direct prosecutors to the nature of the bribery to determine whether a prosecution is proportionate, rather than to the study of foreign laws, where a written provision may simply not exist to cover a practice or custom. While I raise that point as a matter of general debate and look forward to hearing the views of the Committee, I have a specific question for the Minister. Have the Government made an assessment of any impact that Clause 6 might have on British companies operating abroad? Will it, for example, disadvantage them in cases where other OECD nations operate according to local custom while their UK counterparts must strictly observe the local written laws? I wish to develop a further point. The Government have said that they do not seek to outlaw legitimate expenditure, such as reasonable corporate hospitality. Will the Minister expand on where that line might be drawn? I take a possible example: that of a British company that wishes to demonstrate its product to officials from a foreign state and then flies them to its headquarters in the United Kingdom for a demonstration. If the company were to put up the officials in a hotel, it might seem reasonable. We could then argue—I think of noble Lords’ expenses—whether a three-star or a five-star hotel might be reasonable, but that is better left to prosecutors. But we might consider a scenario involving officials from two countries who are put up in a hotel, but the laws of one of those countries are silent as to whether that is permitted. What about that scenario? Would the United Kingdom company be committing bribery of one set of officials but not the other, even though it is behaving in the same way towards both? Would it matter if one set of officials ended up purchasing the product, and the others did not? We could speculate on possible, if implausible, scenarios all day, but clarity on the operation of Clause 6 is necessary. How will legitimate expenditure be made distinct? Would the Government be prepared to consider a specific defence for reasonable hospitality? Will advice be available from the Government on potentially confusing cases where the fact of bribery depends not on the intention of P, but on an understanding of foreign written laws? As I said, I merely wish to debate the measures, not signal any particular disagreement with them. I shall listen carefully to what the Minister has to say in response and, for that matter, what other Members of the Committee have to say in relation to the question I posed about Clause 6. I beg to move.