Bribery Bill [HL]

I start by apologising to the Committee for having become so overheated that I seemed to set forth a problem with the microphones. I continue with the debate on the group that includes Amendments 8 and 10, which have already been spoken to by the noble Lord, Lord Henley, and Amendments 11 and 16 in my name and that of my noble friend Lord Thomas of Gresford. Clause 7 is a very important clause—perhaps the most important in the Bill. This is because it is extremely difficult under the present law to prosecute a company for a failure to prevent bribery carried out on its behalf. Clause 7 will require all corporations conducting business to treat bribery as a serious issue and compel them to set up proper systems to prevent bribery on their behalf. Clause 7 replaced Clause 5 in the draft Bill, which was presented to the Joint Committee for pre-legislative scrutiny. That clause would have made it far more difficult to convict corporations that tolerate bribery. Its replacement—Clause 7—was unanimously supported by the Joint Committee, and the principle behind it has been accepted by the Government. Under Clause 7, where bribery is committed on behalf of the corporation, the corporation has to prove, if it is to escape from prosecution, that it has put adequate procedures into place to prevent bribery. The word "adequate" is, as matters now stand, an essential part of Clause 7. Plainly, it will not be sufficient for a defendant corporation simply to say, "Oh, we set up procedures to prevent bribery". That corporation must provide procedures that are, to use a cliché, fit for purpose. Amendment 8, by seeking simply to remove word "adequate", is in effect a wrecking amendment, but I will take it no further because, as I understand it, the noble Lord, Lord Henley, tabled it as part of a probing issue. Amendment 10 relates to guidance and takes us on to Amendments 11 and 16. Penalties under Clause 7 could be very serious, so we believe that it is necessary to provide guidance so that corporations are not at risk of straying unintentionally into a field in which they may become liable for serious consequences. The guidance could be made available from business associations such as the CBI, but several organisations could offer advice that may vary between them. Some—I am not suggesting that the CBI is one of them—might give advice which the clients would like to hear rather than advice that is meaningful and effective. We therefore believe—I think we share common ground here with the noble Lord, Lord Henley—that guidance should come through the Government. As matters now stand, the Government have promised to introduce guidance, but nothing in the Bill requires this, and there is no obligation on any Government to continue to provide guidance after the Bill is enacted. Amendment 10 takes one step by requiring the Secretary of State to lay guidance before Parliament before the commencement of the Bill. That is okay as far as it goes, but we need to take one step further by making guidance a continuing obligation in the law against bribery. This is what Amendment 11 seeks to do. It requires a continuing obligation to publish, and from time to time to amend, guidance to inform people what will happen and where the boundary is between bribery and fair play. Amendment 16 would give guidance to the guides, if I may put it that way. It makes no attempt to define what the contents of any guidance should be; it merely sets out a couple of general principles. That is right, because guidance given through the Government may vary from country to country, from time to time, and from product to product. We want the Government to explain why it is not necessary or desirable to put into the Bill a continuing duty to provide guidance that will be of necessary assistance to companies, particularly those that operate in parts of the world in which there is a great deal of bribery and where they need to be very carefully advised on what will and will not be permissible in general terms.