Bribery Bill [HL]

My Lords, Amendments 5, 6 and 7 in the name of the noble Lord, Lord Henley, seek to qualify the Clause 6 offence of bribery of a foreign public official. They seek to do so by limiting the offence to cases where a bribe is intended to corruptly influence a foreign public official in order to obtain an undue advantage in business by offering to give the official an improper financial or other advantage. We believe that these amendments are undesirable and I am grateful for the opportunity to explain why. As the Committee will be aware, the current clause makes it an offence to bribe a foreign public official. Unlike the general offence, this clause only covers the offering, promising or giving of bribes and not the acceptance of them. Also, unlike the general offence of bribing another, culpability is not premised on any intention to elicit improper contact, although this will often be the case. The Clause 6 offence is formulated so as to avoid the need to identify precisely the nature of the functions of and duty owed by foreign public officials. Such matters have proved to be one of the difficulties experienced by prosecutors in this kind of case under the current law. Because of its special focus, the Clause 6 offence describes bribery in a different way to the general offences but, equally accurately, describes conduct that would be characterised as corrupt by all right thinking people. We submit that the clause achieves its purpose without the need for the additional language proposed by the noble Lord, Lord Henley. Let me explain why. First, the person giving the bribe must intend to influence the recipient in the performance of their function as a public official. Secondly, the bribe must be intended to obtain or retain business or a business advantage. Lastly, the advantage finally or otherwise offered, promised or given to the foreign public official is defined as a bribe when the foreign official is neither permitted nor required to be influenced by the offer, promise or goods as determined by the application of written law. I appreciate what the noble Lord may be seeking to reflect in the offence normal business practice. Of course, it is the very nature of a business in a free market that one company will seek a business advantage over another, but such an advantage must be secured through honest and legitimate means. Contracts should be won by presenting a tender that represents for the client the best value for money and not by offering additional payments or advantage to secure the contract. Qualifying Clause 6(2) by referring to an undue advantage in the conduct of business could provide a let out to a person charged with a Clause 6 offence. I can foresee endless legal arguments over whether the advantage the defendant sought to secure was or was not an undue advantage. The same can be said of the proposed qualification in subsection (3). In the absence of a clear definition, where is the line to be drawn between, on the one hand, a financial or other advantage and, on the other, an improper financial or other advantage? If the noble Lord’s intention is that the concept of impropriety in Clauses 1 and 2 should equally apply here, there would be a need to identify precisely the nature of the functions of and the duties owed by foreign public officials. This is precisely what the model in Clause 6 seeks to avoid. Experience shows that such a requirement places significant difficulties in the way of effective prosecutions in cases of this kind. In both cases, the additional words introduce an unnecessary and added complication. They represent additional matters for the prosecution to prove which could undermine the value of the bespoke offence. In using the words "undue" and "improper" the noble Lord may be probing whether the wording should more closely follow the wording of the OECD convention, which is the source of this bespoke offence. However, we believe that the offence in Clause 6 fully achieves the purpose and effect of the offence in the convention as drafted. It has the backing of the Law Commission, the Joint Committee and the OECD itself. Amendment 5 seeks to insert the term "corruptly" into the clause. As my noble friend Lord Bach indicated in response to the first group of amendments, we are having considerable difficulty with the use of this term. It is an inherently difficult and vague concept found in the existing statutory offences. We have made a conscious decision to abandon its use in the Bill. The use of the word "corruptly" here will inevitably require the courts, in searching for the meaning of the word, to revert back to old, inconsistent case law and thereby introduce another level of unnecessary complexity and uncertainty. It would allow the old and failing current law, which we intend completely to reform, to haunt the application of the new law from beyond the grave. The noble Lord, Lord Henley, raised a number of points which I shall now do my best to deal with, with the caveat that if I say anything that needs correction I will write to him and other Members of the Committee. On the issue of whether custom and practice will be a defence, it is quite clear that it will not be. That is why there is a specific reference to the written law. Ignorance of the local law will not be a defence in relation to the offence in the Bill. Those involved in international business activities should have ready access to legal advice on the legitimacy of payments to foreign officials and should think twice before offering, promising or giving advantage to foreign officials. The Joint Committee fully considered the impact of the Clause 6 offence on bona fide commercial activities such as corporate hospitality. In its report at paragraph 147 the Joint Committee noted that the prosecutorial discretion would be able to differentiate the good from the bad in respect of corporate hospitality and was content with this approach. The evidence of Professor Horder of the Law Commission was highlighted in the report, which stated: ""Might it not be said, then, that ‘improperly’ should be tacked on as an adverb after ‘influence’ so as to distinguish legitimate from illegitimate hospitality? … The answer is ‘no’ because that ""would inevitably re-introduce questions about whether cultural norms and expectations can make a payment ‘proper’, and that is exactly the result that this offence is designed to prevent"." Should there be a defence for reasonable corporate hospitality? We do not believe one is needed. The offence applies only to advantages given to foreign public officials which are intended to influence officials and to obtain or retain business. This will not necessarily be the case in respect of hospitality. To the extent that any corporate hospitality might be caught by this division—which will certainly not generally be the case—it is appropriate for prosecutors to take a view on where the public interest lies. It is unlikely that reasonable hospitality to foreign officials will attract the interest or action of enforcement authorities. I hope that answers, at least in part, most of the questions posed by the noble Lord, Lord Henley. We shall of course examine his remarks with great care and consider whether there is any further information that we might sensibly provide in writing and, if so, we shall write to him. On that basis, I ask him to withdraw the amendment.