Bribery Bill [HL]

I support the probing of the word "adequate" in this clause, which is the purpose of the amendment proposed by my noble friend Lord Henley. It is important that we should have, during the proceedings of the Bill, a statement of the Government’s view on that. I also very much agree with the proposals for guidance. At Second Reading, I indicated that that issue is important. It is absolutely essential that the guidance should be available in authorised form before the statute comes into operation. I also entirely agree with the view put forward in Amendment 11 that the guidance should be continuous. The circumstances of individual countries can change and it is important that the guidance should take account of that. I do not believe that the guidance can be as simple as the noble Lord, Lord Patten, suggested at Second Reading when we take account of the facilitation payment included, for example. I might have no hesitation about having publicity about the fact that I had to pay to get what I was entitled to—because I could not get on the plane otherwise. That must be dealt with especially. I also agree in principle with Amendment 16. I am especially pleased to see that subsection (3) allows the guidance to be taken into account in deciding whether there is a defence. In other words, people who rely on the guidance are entitled to have that taken into account in the case if they are prosecuted. I know that that is proposed in principle here. I think that it would need to state some mechanism by which the Secretary of State issues the guidance—for example, by statutory instrument, so that some parliamentary procedure would have taken place before commencement. My former understanding was that "the Secretary of State" meant any Secretary of State. I think that that has been somewhat modified, if I understood it correctly, by the Constitutional Reform Act, which made a number of other changes—not all of which I personally regard as reforms, but that is what Parliament has called them, so I must accept that. I should have thought that the responsibility for the guidance should come from the department of state, which is not exactly a small department, which deals with relationships with companies and businesses, rather than with the Ministry of Justice. The Secretary of State for Justice, in evidence before the Select Committee, expressed doubt about whether he could give guidance. On the whole, it might be better that the guidance came from another department, because the prosecution responsibilities, such as they are in government at all, are to some extent in the Ministry of Justice—although I am glad to say that the Attorney-General is still in position, and I hope that that will continue. We will come to a later amendment about that. It would be appropriate for the department responsible for relationships with business to deal with the matter, because it will have the necessary expertise in business methods and organisation to judge what would be adequate, rather than the Ministry of Justice, which is expert in the area of justice, but this is not of that type. I venture to make that additional comment. I hope that the draft guidance will be produced as soon as possible, but I can see that the parliamentary timetable and the timetable for producing draft guidance may not make that possible. It is essential, before companies are charged under or bound by a statute that requires adequate provision, that they should know what the Government believe adequate provision in principle would be in their particular case.