Bribery Bill [HL]

I shall speak also to Amendment 10. I understand that this is also grouped with Amendments 11 and 16 in the names of the noble Lords, Lord Goodhart and Lord Thomas of Gresford. Clause 7 creates the offence of failure of commercial organisations to prevent bribery. It is a strict liability offence, and a successful conviction could lead to an unlimited fine. It creates an offence, although some of us remember an occasion last year of a strict liability offence that led to a fine of some £5,000 which the Attorney-General described as merely being an administrative error. On this occasion, we are told that it is an offence. There is a defence set out in subsection (2) which would allow the organisation, here referred to as "C", to prove that it had in place adequate procedures designed to prevent a person associated with it engaging in bribery. A number of noble Lords raised this point on Second Reading, and I and, I am sure, noble Lords speaking from the Liberal Democrat Benches seek with these amendments to find out what is meant by "adequate". Amendment 8, which is a probing amendment—I do not need to be told that it is undesirable—would delete "adequate" from the defence in subsection (2). Who is to judge what is adequate and what is not? If a company has stringent rules in place, checks on its employees, has transparent accounting and so on, but a determined associate of that company still manages to bribe another, were those procedures adequate? They did not, after all, prevent the offence of bribery taking place. What about a company with weak procedures in place which nevertheless managed, perhaps more by chance than anything else, to stop an embryonic plan to commit bribery? Which of those cases should be prosecuted? I am sure that the Minister will say that such matters could be left to the discretion of the prosecuting authorities; it would be quite reasonable for him to do so. What about the commercial organisations themselves? How will they know if they have put in place adequate procedures? Clearly, this is a place for guidance from the Government. The Joint Committee noted that there was near unanimity among those from whom it had heard evidence that the meaning of "adequate" procedures will require amplification through guidance. The Joint Committee noted too that there was a widely held concern among commercial organisations regarding the lack of certainty about what would be considered adequate procedures. It acknowledged that this Bill would affect a large range of organisations, making it difficult for the Government to produce comprehensive guidance. It thus recommended that appropriate bodies should be able to draft guidance tailored to their membership that could be approved by the Government to provide it with official status; in other words, sector-specific guidance. This approach has been re-emphasised by the Law Society and the Bar Council. The law firm DLA Piper noted that companies that dealt with it were eager to comply with the law. I am sure that that will be the case for most, if not all, companies. However, unless they know what the law is, compliance will be difficult. It should not be left to years of court cases for the law to be clarified. There could be severe consequences should the position remain uncertain. As well as being subject to an unlimited fine if successfully convicted, corporations are concerned about how the confiscation regime under the Proceeds of Crime Act 2002 might relate to this offence. The present legislation was designed to deprive individual defendants, particularly drug dealers and organised criminals, of the benefits of their criminal conduct. However, there has been no acknowledgement or recognition that there could be serious implications for companies caught by the legislation, which in some cases could see them being put out of business if the full weight of the law were applied. This might not be the time or place to address the operation of the Proceeds of Crime Act 2002, but the fact that businesses wish to draw it to the attention of Parliament during our debates on the Bill highlights how unsettled they are by the introduction of a strict liability offence to which the defence is worded so vaguely. It is for these reasons that I have tabled Amendment 10. While I will leave it to noble Lords on the Liberal Democrat Benches to introduce their own amendment, I suspect that this is the reason for it. Amendment 10 simply commits the Secretary of State to publish guidance before the clause comes into effect. I do not think that the Minister disagrees on the need for guidance. He may argue that it need not be statutory. Again, I will listen with interest to the Government’s views, but I am uneasy about allowing the Bill to pass without an idea of how its provisions will work. I beg to move.