Bribery Bill [HL]

My Lords, I have given notice of my intention to oppose the clause. I shall not go over all the areas that we have helpfully discussed this afternoon, but this is a very curious clause as a whole. I start by referring your Lordships to what the noble and learned Lord, Lord Woolf, said at Second Reading. He suggested that, ""the defence is put there no doubt to give reassurance to those who are referred to"." I think that these are just nods in the direction of the police, the Security Service and the Armed Forces without any particular utility. The learned Lord said: ""It seems to me that if it was clear that what was done was necessary in the public interest, then that is not a situation when prosecutions should occur. It should be no problem for the agencies referred to to be able to inform the law officer or director concerned that that is the position. —[Official Report, 9/1/09; col. 1100.]" At Second Reading I followed that point up. The burden of proving this defence is on the person charged. This is not an evidential burden; he actually has to prove his innocence. That is not a very easy thing to do. He has to deal with the point that was raised by the noble and learned Lord, Lord Mackay, in relation, for example, to subsection (1)(b). He has to prove that he has properly exercised his function as a member of the Security Service, the Secret Intelligence Service or GCHQ. How does he do that? How can he, and those who are acting on his behalf, have access to the documentation that would be necessary for him to give that proof? How could he go into court and raise these issues in front of a jury except in the most exceptional circumstances of secret hearings? It is extremely difficult for him to prove these matters. I have just referred to the nonsense in paragraph (c). It refers to, ""the proper exercise of any function of the armed forces"." However, the defence is not available to them if the bribe has been paid to anybody in any administrative position, so it is quite unnecessary. If there are, for example, secret matters to be conveyed, they should not be conveyed to the court or to the defence team but to the person who takes the decision whether or not to prosecute; in other words, the Director of Public Prosecutions, the director of the Serious Fraud Office or the director of HMRC. As the noble and learned Lord, Lord Woolf, said, these are the people to whom the representations can be made before the decision to prosecute is brought forward. That is the protection for individuals who are part of a law agency, the security services or the Armed Forces. That is where it should cut in, not in charging somebody—with all the publicity that that involves and all the trauma of a trial—who has in effect just been doing his job, and on whom all the burden of defending himself will be placed. The noble Lord has told us that he will consider the result of what we have discussed this afternoon. When he does so, will he ask himself whether this provision is necessary? That is the first question. If it is necessary, will he tell us on Report why it is necessary to go through the whole procedure of a trial for a defence to be raised with the burden of proof on the defendant? Why is that necessary? Secondly, will he deal with the points that have been raised this afternoon not merely in relation to the police but the other parties referred to in paragraphs (b) and (c)? This measure is just a nod towards those institutions and should be withdrawn. I hope that the Minister will do so without any further delay.