Bribery Bill [HL]

My Lords, these amendments are all concerned with the Clause 12 defence as it applies to the functions of the three intelligence services. They reflect the concerns of the Constitution Committee and seek to limit the operation of the defence in various ways: first, by excluding bribery in pursuit of certain of the intelligence services’ functions from the ambit of the defence; secondly, by removing GCHQ from the scope of the defence—I know that is the subject of a probing amendment—and, thirdly, by providing that the defence can be deployed in proceedings only with the prior authorisation of the Secretary of State, which is likewise the subject of a probing amendment today. Let me deal with these three aspects in turn. Amendment 22 seeks to restrict the application of the defence to conduct required in the exercise of the intelligence services’ national security function only. Amendment 23 is not as restrictive as it would enable the defence to be deployed in cases engaging the intelligence services’ national security and crime prevention and detection functions. The purpose of subsection (1)(b) of Clause 12 is to provide a defence in circumstances where the Security Service, the Secret Intelligence Service and GCHQ may have to use financial inducements or rewards to carry out their relevant functions. As we have just been reminded, those functions are set out in statute. It is right that the Bill should mirror them and not take a selective approach which would undermine the ability of the services to discharge their legitimate purposes as previously endorsed by Parliament. Moreover, in order to be effective, the defence cannot be focused on only part of the intelligence services’ statutory functions. All of the statutory provisions under which each of the services fulfil their respective roles refer to the three purposes on which their work focuses. These are national security, the economic well-being of the nation, and the prevention or detection of serious crime. Each of the relevant statutes deals with how the services exercise their functions in slightly different ways. The position of the Security Service is slightly different, but certainly the Secret Intelligence Service and GCHQ need to exercise their statutory functions across the entire range of the three purposes. That range is intended to cover matters that are of significant national importance but not necessarily matters that relate simply to national security. There is—this is the point I am trying to make—considerable overlap between the three purposes. They are not neat silos and it is not practicable to seek to distinguish one as being more important than another. It is true that the national security category is quite broad and would cover many operational needs. The noble Lord, Lord Williamson, for whose general support I am more grateful than he knows, issued a gentle word of criticism about the expression "any function", and said that there was no such reference in the draft Bill. However, the expression "a function" appears in Clause 13(4) of the draft Bill. I argue that it has effectively the same meaning as "any function" in the context of this Bill. What we are referring to here are the statutory functions contained in the Security Service Act and the Intelligence Services Act. I shall give an example of the response of the services to a planned terrorist outrage. It is obvious from this that it could fall within two or three of the statutory functions that I have just outlined. If there were a planned attack on a power station, the response might amount to action to protect national security and to protect, quite legitimately, the economic well-being of the nation. Other operations might fall entirely under one or other headings. Similarly, information-gathering on the part of GCHQ or the Secret Intelligence Service, in support of a number of linked investigations into large-scale fraud or other financial irregularities that are of significant relevance to the economic well-being of the UK, may not naturally fall within the scope of the national security category. Perhaps of even more significance is the fact that a single operation may comprise a number of parts, each of which may fall to different categories. The point is that it will not always be clear, at least not always initially, what precise function the conduct in question related to. Moreover, it would be wrong to deny the defence where the conduct occurred in the pursuit of one of the functions that Parliament had actually conferred on the services because it appeared, on a later analysis, that the case did not fall within the scope of one specific function. Our proposition is that reliance on the national security category alone would be inflexible and, frankly, operationally ineffective. I know that some noble Lords will be particularly concerned about the inclusion within the scope of the defence of conduct on the part of the services in order to protect the economic well-being of the nation. There is nothing particularly mysterious about this category of work by the services. Under this heading, the services might act to safeguard and/or obtain intelligence in the interests of the national economic interest. Clause 12 expressly excludes any offence involving bribery of a foreign public official, thereby complying, we would argue, with the OECD convention. To go back to economic well-being, the services may, for example, employ conduct that amounts to bribery under the Bill in order to monitor events and trends that might have a serious effect on the UK economy as a whole. That would include intelligence on instability in a part of the world where substantial British economic interests were at stake or where the economic well-being of the UK was threatened by hostile states seeking to undermine this country’s economy or to use economic levers as hostile policy tools. The services may exercise their functions in support of UK foreign policy where adverse economic or political developments overseas pose a serious risk to UK or global economic security. Another example would be to provide warnings of threats to the supply of energy, commodities or raw materials on which the UK is especially dependent, or perhaps to identify external attempts to manipulate commercial markets, especially when such actions could undermine confidence in the City of London or affect the stability of other financial markets. I hope that the Committee—especially those who have been Ministers; the noble Lord, Lord Henley, reminded me that many noble Lords here have been very senior Ministers in the past—will appreciate that I cannot give examples of actual operations. I hope that noble Lords can surmise that the UK intelligence and security services may seek to identify, recruit and run sources in a manner that may sometimes involve the use of conduct that would amount to bribery under the Bill in order to allow reporting on these intelligence requirements. This would be done only where such conduct was assessed as necessary and proportionate in accordance with the services’ respective statutory functions. Further, in all cases the matter must be one of national significance, and the aim of operations conducted under that heading is to allow the Government to take actions appropriate and consistent with obligations under national, EU and international law. Amendments 24, 25 and 31 would exclude GCHQ from the operation of the defence. GCHQ can exercise its intelligence function only in relation to national security, the economic well-being of the UK and the prevention and detection of serious crime. In other words, the exercise of this function is exactly limited in the same way as those of the Secret Intelligence Service and the Security Service. Despite GCHQ’s focus and expertise on all matters relating to communications monitoring, it would be wrong to assume that the organisation does not also fulfil a more active operational role. It is true that, compared to the other intelligence and security services, there are far fewer circumstances in which GCHQ would need to do things that would be an offence under the Bill; in particular, the scenario of rewarding an agent for information of intelligence value would seldom arise. However, I emphasise that that does not mean that there are no relevant circumstances that could apply to GCHQ. In order to maintain a strategic interception capability and to continue to provide intelligence on certain targets critical to our national security, GCHQ may need to provide equipment or assistance to individuals who are in a position to support its interception mission in challenging environments. The Committee will of course understand that it would be potentially damaging to intelligence capability to provide particular examples. However, I can indicate that, in some cases, the provision of equipment or other assistance would be likely to constitute the conferring of an advantage as an inducement to undertake, or reward for, conduct that would amount to a breach of an expectation that the person will act in accordance with the position of trust owed to their employers; in other words, it would be an offence under the Bill. To avoid doubt, and in order to allow GCHQ to reassure its staff that any such activity that is a proper exercise of its functions is within the law, the Government believe that the defence in the Bill should be available to GCHQ on the same basis as the other services. Moreover, this role may of course be fulfilled in partnership with the other services. The inability of GCHQ to deploy inducements where it is necessary in order to fulfil its operational role could obviously potentially compromise operational effectiveness of all three intelligence services. It would therefore clearly be wrong to exclude GCHQ from the scope of the defence, Finally, Amendment 27 would limit the use of the defence by requiring the Secretary of State to authorise its use in proceedings. A similar proposition has been put forward by the Constitution Committee, which argued that, ""the use of these defences should be made dependent upon prior authorisation"," by the Attorney-General or Secretary of State. As the Committee will recall, the Government put forward an authorisation scheme in the draft Bill. However, it did not find favour with the Joint Committee when it examined the Bill; we have already had that paragraph read to us. That authorisation scheme provided for a system of authorisations prior to the conduct in question. A different approach would be to require authorisation after the conduct had occurred but before the defence was deployed. Having reflected on our original proposals in the draft Bill and the Joint Committee’s response to that Bill, our view is now that the defence in Clause 12 is preferable to an authorisation scheme, whichever of the two models, prior or post, is adopted. In contrast to the authorisation scheme in the draft Bill, the Clause 12 defence is case-specific and ensures that the necessity or otherwise of the conduct is tested by reference to the roles of individual people and the particular circumstances of individual cases. Ultimately, whether the defence is made out could be a matter for the court or jury to determine. Noble Lords will remember that the draft clause referred to class authorisations and authorisations that lasted for a long time; it was unspecific and wide. The proposals here are preferred. We are not persuaded that the defence should be augmented by an authorisation scheme of the kind provided for in Amendment 27. That would require the Secretary of State to authorise the use of the defence in a particular case. Such a scheme would have some of the same drawbacks as a reliance on prosecutorial discretion; there would be no certainty at the point at which an offence was committed that the defence would be available. It would be an unwelcome and ill-advised development in our criminal process for a Minister of the Crown to decide whether a statutory defence should be available to an individual charged with an offence in a particular case. Such an arrangement would be all the more objectionable if prior authorisation had to be given by the Attorney-General. The Attorney-General would have an overall responsibility for the prosecuting authorities who would be bringing the case and would be put in an invidious position if she were also to have the role of deciding whether a person being prosecuted could or could not rely upon a defence. In any event, we are not aware of any other example where a law officer or a Minister is given a power to decide whether or not an individual who is being prosecuted for an offence can rely on a defence to a charge. Moreover, we consider that to combine the defence with an authorisation scheme would introduce unnecessary duplication into the Bill. A prior authorisation would negate the need for the defence and vice versa. The scheme proposed in the Bill represents the most appropriate response to this issue. I hope that the noble Lord, Lord Goodhart, having heard the arguments I have employed, is persuaded to some extent. Under the rules, he will have to withdraw his amendment today but I hope I have persuaded him to do a little more than just that.