Bribery Bill [HL]

My Lords, I have received guidance from the noble Lord, Lord Henley, on probing amendments and not responding to them too literally. However, I think that the noble and learned Lord, Lord Mackay, did invite me to respond to it literally. I understand that the noble Lord, Lord Henley, does not intend to press the amendment. If "adequate" were taken out, that would drive a loophole through the offence. I see that he nods, so I will move on to the substantive debate concerning guidance. The Government are committed to publishing guidance on the meaning of adequate procedures well before this offence is brought into force. As the noble and learned Lord, Lord Woolf, put it at Second Reading: ""Normally, it is not desirable for guidance to enter into areas of criminal law".—[Official Report, 9/12/09; col. 1100.]" We agree, but we recognise that the offences in this Bill are a special case and that guidance is necessary to assist those who might be directly affected by the offences in this Bill. As the noble Lord, Lord Bach, said in his letter of 16 December to the noble Lord, Lord Henley, Ministry of Justice officials have already made a good start on the development of guidance. Officials have already met with a number of experts from organisations such as Transparency International, the Institute of Business Ethics and the Anti-Corruption Forum about what should be included in the guidance and they will be meeting other stakeholders with an interest in this subject over the coming weeks. In addition, my ministerial colleague, Claire Ward, met a wider group of stakeholders, including the Confederation of Business and Industry and the Federation of Small Businesses on 15 December to discuss the Bill in general. Naturally, that discussion turned to the Clause 7 offence and the need for government guidance on adequate procedures. What is clear from these discussions is that there is a wealth of information published by reputable organisations on which we can and should draw when developing our own guidance. The OECD is working on good practice guidance on internal ethics and controls, due to be published later this year, which we will undoubtedly wish to reflect in our own guidance. Organisations such as Transparency International and the Global Infrastructure Anti-Corruption Centre have published impressive anti-bribery strategies on their websites, which, if adopted by commercial organisations, would go a long way to eradicating bribery. We would expect our guidance to cover much the same ground as the examples to which I have referred. Among the issues that I anticipate will be addressed are: the responsibilities of an organisation’s board of directors; the identification of a named senior officer with particular responsibility for combating bribery; risk management procedures; gifts and hospitality policy; facilitation payments; staff training; financial controls; and reporting and investigation procedures. This is not a comprehensive list, but it will provide the Committee with a flavour of the issues we would expect to cover. We aim in advance of Report to let noble Lords have a more detailed list of the content of our guidance. Having given an absolute commitment to publish guidance, we remain unpersuaded of the case for enshrining that undertaking in statute. I again pray in aid the noble and learned Lord, Lord Woolf, who said at Second Reading that, ""it is of no great significance whether it is statutory or non-statutory guidance".—[Official Report, 9/12/09; col. 1100.]" The Government are often criticised, I might add unfairly, for legislating needlessly. Our submission is that Amendments 10 and 11 fall into that same trap. They are unnecessary and would create an unwelcome precedent. I turn now to Amendment 16, which would require the guidance to address certain specified matters. The guidance will undoubtedly cover the points suggested by the noble Lord, Lord Goodhart; that is, that it will be indicative guidance setting out the broad principles and supported by a list of examples of good practice. The guidance will also be designed with businesses of all sizes in mind. What constitutes adequate procedures for one organisation will be over the top for another. The procedures put in place by any organisation must reflect the circumstances of that organisation. Indeed, the flexibility of non-statutory guidance should help to achieve that objective. I shall address some of the specific points made by noble Lords. Again, I may not answer all of them in the detail required, but I shall write if that is useful. Under the Proceeds of Crime Act 2002, the exercise of confiscation powers is directed towards the recovery of the proceeds of crime. It is not intended to be punitive in effect. We are satisfied that the courts will take into account all relevant information—