Bribery Bill [HL]

I have heard the strong views of the Committee; of course we will think again. That is why we have Committee proceedings: to consider the position. In due course I will make a concession on the width of the law enforcement agency panel that might be covered by Clause 12(1)(a). We have tried to explain why the law enforcement agencies have now been brought into the Bill that is before Parliament, but were not in the draft Bill. We recognise that the creation of any defence in the Bill has to be proportionate and we have drafted Clause 12 in a way that ensures that this is the case. We have restricted the application of the defence to serious crime. In the interests of consistency, the clause, as it stands, adopts the definition of serious crime in RIPA 2000. The definition covers offences attracting, as the Committee will know, a penalty of three years or more, or which involve the use of violence, result in substantial financial gain or are conducted by a larger number of persons in pursuit of a common purpose. The limitation is an attempt to mitigate the risk of the defence being applied in respect of lower-level offences, preserving the ability of both the police and other relevant agencies to tackle the full range of serious criminal activity. The second point that I put to the Committee is that it will fall to the person wishing to rely on the defence to demonstrate that his or her conduct was necessary to prevent, detect or investigate serious crime, should a prosecution be brought. Each case will be considered on its merits, and those concerned cannot take reliance on the defence for granted. The Constitution Committee noted that the definition of "law enforcement agency" extended beyond the police to other law enforcement agencies, namely Her Majesty’s Revenue and Customs, the UK Border Agency and, perhaps more significantly, local authorities’ trading standards and environmental health officers. Although the police and the Serious Organised Crime Agency—SOCA—carry the most significant responsibility for combating serious crime, there are other agencies operating in this sphere that we should not lose sight of. The UK Border Agency has a key role in combating people smuggling. One way or another, the clause needs to capture all the relevant law enforcement agencies, but I accept that our approach may have cast the net too widely. I have heard the concerns expressed in Committee today and at Second Reading, and the Constitution Committee’s opinion on this matter. I invite the noble Lord, Lord Henley, in deciding what to do with his amendment, at least to withdraw it today. I promise to reflect carefully between now and Report on what has been said generally as well as on whether this is too wide. I cannot at this stage commit to tabling on Report a government amendment to narrow the definition, but the concerns that have been raised in Committee have been noted. We will look at the matter at least as far as the width of "law enforcement agencies" is concerned; we will look with sympathy at attempting to amend that. A number of different points were made by noble Lords in the course of the debate. This point is worth making. We obviously live in very different times from when the current corruption laws were written back at the end of the 19th and early 20th century. Since the middle of the 1990s, for example, the intelligence service has been placed on a statutory footing, as, I believe, have the police, thus emphasising the importance of transparency and accountability. Against that background, there have been a number of examples of specific statutory provisions relating to conduct particularly by the intelligence services—for example, the defence relating to making indecent images of children inserted into the Protection of Children Act 1978 by the Sexual Offences Act 2003 and widened by the Criminal Justice and Immigration Act 2008. As with Clause 12, a defence exists there and prosecutorial discretion is not solely relied on. The noble Viscount, Lord Colville, asked me how the police will authorise the use of bribery. Where the police consider it necessary to engage in conduct which would constitute an offence under Clause 1 in pursuit of their functions in respect of serious crime—there is perhaps a disagreement between us as to whether that is ever likely to happen—we would expect the police to have in place appropriate internal authorisation procedures. The police are used to having such internal controls and procedures in place, as is the case under RIPA. I assure the Committee that such controls will be in place in this context. The noble Lord, Lord Pannick, asked me for examples. It was a fair question, but I am not able to provide specific examples. In recasting our law on bribery, which is the exercise in which we are involved at present, we are attempting to make the law on bribery both up-to-date and, even more importantly, transparent. It is right that we are open and clear about when payments that would otherwise be offences under the Bill should be permitted as legitimate. As I have argued, references of this sort are by no means unprecedented; I have already referred to the Protection of Children Act. The noble Lord, Lord Henley, asked me at the start of our debate when we will be responding to the Constitution Committee report. We want to reflect on today’s debate before responding to the report—I think that that is a fair decision to make. We certainly hope to respond to the report in advance of Report, which, as the noble Lord rightly says, is pencilled in for 2 February. As for the evidence given to the noble Viscount’s Joint Committee about the police and the SFO, our understanding is that in giving evidence to the Joint Committee, the City of London Police and the SFO were commenting on the authorisation scheme contained in the draft Bill. Clause 12 proposes something different. In any event, it is not our understanding that Detective Chief Superintendent Head, who, I believe, was the officer who gave evidence, was setting out a considered ACPO view on the issue. I have tried to deal with the various questions asked me by noble Lords. We believe that we are justified in extending the provisions to include law enforcement agencies. The argument for us is how widely we should extend them. I know that we will come back to this issue in due course. I give way to the noble and learned Lord.