Bribery Bill [HL]

My Lords, before I try to answer the Motion that the clause not stand part, I thank all noble Lords for their part in today’s discussions on this difficult clause. They have been helpful for the Government, and we will go away and consider what has been said. I will try to keep my remarks fairly brief. We argue that the offences created by the Bill will capture instances where members of the three services recruit and reward agents and contacts both in the UK and overseas. In the absence of the defence in Clause 12, service staff and those acting on the services’ behalf will be exposed to potential liability for carrying out functions bestowed on them by Parliament in pursuit of requirements set by the Government. All three services make use of agents and confidential contacts to assist them in carrying out their statutory functions. That can range from the long-term deployment of agents in highly sensitive positions to engaging a member of the public to provide one-off assistance to a terrorism or other investigation or operation, within the services’ statutory functions. The services—I choose my words here with care—will often need to offer financial or other inducements to secure such assistance, or will wish to reward individuals in recognition of the value of the assistance they have provided. If, for example, an individual acting in the course of their employment agreed to a particular action that would put them in breach of their duty of trust to their employer because they were asked to do so by one of the services in the interests of national security, perhaps even at some personal risk, it would not be considered untoward for the service concerned to make a gift or payment to that individual to reflect the service’s appreciation for their support and assistance. I hope and think that it is agreed that such individuals should certainly not face criminal liability as a result of their willingness to assist. We have to strike the balance between exemptions from the criminal law on the one side and catering for the needs of those who undertake very important functions on behalf of the public on the other. We believe that the balance is struck by Clause 12. I take comfort from the fact that noble Lords have questioned the need for Clause 12 on the grounds that this issue can adequately be dealt with through the exercise of prosecutorial discretion. That makes the point that it is recognised that there will be occasions when the fight against serious crime, the protection of national security or the safety of our Armed Forces justify certain organs of the state committing acts of bribery. However, that approach fails to recognise that it is clearly in the public interest for the services to operate on the basis of a secure legal footing. Members of the services should not be placed in a position where the proper performance of their duties puts them in breach of the criminal law. That would place officers in an invidious and unacceptable position. We think that the Bill provides an opportunity to regularise the position by providing an appropriate mechanism for removing criminality from this kind of conduct. I ask those noble Lords who might advocate reliance solely on prosecutorial discretion to put themselves in the place of the police officer, the intelligence service operative or the Army officer engaged on active service, all of whom are exercising important functions on behalf of the public. Such a person may be faced with a situation where offering a bribe is necessary in the circumstances, at the same time as knowing or believing that to do so would be a criminal offence. Relying on prosecutorial discretion not to bring criminal charges against individuals for actions done as part of their statutory functions does not provide sufficient certainty for staff, agents or members of the public who may be concerned about liability. There is also the risk for operational security that, in the absence of a defence, an in-depth investigation by the police would entail. This would be an invidious position for a person acting in accordance with statutory functions and in the public interest. To say to such a person, "Don’t worry. Should it come to it, I’m sure the prosecutor can be relied on to exercise their discretion not to prosecute", does not sound, frankly, as though it provides sufficient assurance. Nor does it address the fact that the conduct would ostensibly remain criminal despite no prosecution proceeding. There may be cases of insufficient evidence, or it may not be in the public interest to proceed. The important point is that the approach provides insufficient comfort. The impact on morale would affect not only service staff but those on whom they rely to assist them in carrying out their statutory functions. The recruitment of agents in highly sensitive positions is not assisted when there is no assurance that they will not face independent investigation and prosecutorial scrutiny by doing what they are asked to do. Equally, criminalising their behaviour would act as a sufficient disincentive for the majority of members of the public who would instinctively want to respond positively to a request for assistance from one of the services. This would risk significantly undermining the good will and support of the public, on which the services rely. Such individuals, who are exercising important functions on our behalf, have the right to expect greater certainty about where they stand in the event that the effective discharge of their duties necessitated conduct which would amount to an offence under the Bill. The defence in Clause 12 will make clear that should a person exercising such functions ever find himself or herself charged with an offence, he or she would have a defence that could be put before the court. Crucially, too, Clause 12 will assist independent prosecutors in deciding whether proceedings should be brought. It contains a clear statement as to the factors and conduct which would be subject to the criminal law. We do not seek to hide the fact that certain arms of the state may need to offer financial or other inducements that would amount to a bribe to carry out their functions effectively. Clause 12 makes the position entirely transparent. The alternative suggestion, put forward with great clarity by the noble and learned Lord, Lord Mackay of Clashfern, is that we might have an authorisation scheme to deal with this issue. When the Government proposed an authorisation scheme in the draft Bill, the committee chaired by the noble Viscount basically threw it out. It did not agree with it. It is not for me to say whether it did not agree with the principle or with the authorisation scheme that was proposed; I can only read what is in the document. There are problems with an authorisation scheme, but the proposal in draft Clause 13 was that an authorisation might, in particular, relate to one or more specified acts or omissions; be limited to one or more specified persons; be subject to specified conditions; and would cease to have effect at the end of a period of six months, starting on the day on which it was given. In other words, the authorisation would be extremely wide, would cover a whole class of persons and activities, and would, in our view, be much too broad. The alternative to that would be to have specific authorisation under the Bill for every potential act of bribery by a member of the security services. In practice, that is not a very sensible thing to have to put before Secretaries of State. It would have to be done a huge amount and very regularly, and would take up a lot of the time of a conscientious Secretary of State.