Bribery Bill [HL]

My Lords, Amendment 17 brings us back to the issue of adequate procedures for the purpose of Clause 7. The noble Lord, Lord Thomas of Gresford, has proposed that an advisory service be established that would enable companies to seek advice on the adequacy of their procedures for the purpose of Clause 7. As the noble Lord will be aware, the Joint Committee rejected the proposals to provide an advisory service with a wider remit, particularly given that such a service would call into question the independence of prosecutors. The Joint Committee recognised the significant differences between our criminal justice system and those where such a service is provided, that those prevent direct analogies being drawn, and that it would in practice be difficult to establish such a service here. We agree. The amendment would not prevent prosecutors instituting proceedings where advice has been given. However, the principle of Government providing advice to individual organisations about their particular procedures is highly inappropriate. It would amount to the Government advising individual organisations on whether, if a person acting on their behalf committed bribery, they would be guilty of the corporate offence. Even if the advice were given by an independent official body—no such body exists—our concern remains. The Joint Committee drew attention to the evidence given by the Director of Public Prosecutions and the Attorney-General, who both expressed concern at such a body giving advice on prosecutorial issues as it would risk undermining the independence of prosecutors. While the amendment would preserve the ability of prosecutors to bring charges where advice was given, the reality is that the body would be directly advising on what are ultimately prosecution decisions. In addition, the process gives rise to significant practical concerns. In the event of a prosecution being brought despite advice, it is not difficult to envisage the criminal proceedings being entirely distracted by an examination of the adequacy of the advice from the department or official body rather than the key question as to whether the proceedings that the defendant organisation took were adequate in the circumstances. We are not lightly setting the idea aside; we have considered it carefully. We note that the Joint Committee considered it carefully, but also note the concern of the DPP and the Attorney-General. For those reasons, we cannot commend the amendment to the Committee.