Bribery Bill [Lords]

I should say to the hon. and learned Gentleman that the wording slightly differs. One function of the Security Service is""to safeguard the economic well-being of the United Kingdom"—" there is no full stop, because with a bit of luck that is a function of the Treasury, the Department for Business, Innovation and Skills and the rest of us—""against threats posed by the actions or intentions of persons outside the British Islands."" As I say, similar, though not the same, language is used in respect of the other two agencies. It is right that these provisions should be scrutinised, but I hope that it will be possible to reassure the House and the Committee on them. We could have done what other jurisdictions do, which is to be silent about all this. It is much easier to be silent about this, particularly in civil Napoleonic systems, as I know to my certain knowledge, having discussed what protections are given in practice to intelligence agencies by the judicial systems of some of our European partners. Their approach is straightforward and it is a matter of policy: nothing is on the statute book, but everybody knows what they need to do and everybody does it. Our system is much more open and because of that I thought it would have been disingenuous to have remained silent on this issue and it would have been intensely unfair on officers or agents of the intelligence services and armed forces who may be asked to undertake this unpleasant activity in the course of their work. Nobody should be put in a position where they are placed at risk of prosecution for engaging in work that would otherwise be unlawful but which is necessary in pursuit of the security of the state. I believe that there is common ground on that. The question to address is what form the special provision for the intelligence services and armed forces should take. The 2003 and 2009 draft Bills contained provision for an authorisation scheme cast in similar terms to section 7 of the 1994 Act. That provides for an authorisation by the Secretary of State and, in practice, by the Foreign Secretary of the day. An authorisation allows members of the agencies to undertake activities that would otherwise be in breach of the criminal law. That was the original proposal, but the Joint Committee that examined the most recent draft Bill was not persuaded of the case for these special arrangements and therefore proposed the removal of the authorisation scheme. I examined that, and I tried to respond to the criticism that was made of the Bill and improve the Bill. I thought that if there was a better and lighter way of meeting the same purpose we should use it. We, thus, withdrew the authorisation scheme and concluded that a better approach would be to provide for a defence. The defence is a more focused and case-specific mechanism than the authorisation scheme contained in the draft Bill. An authorisation scheme needs to provide for a wider authorisation if it is to be workable in practice and confer the necessary operational flexibility. If I may say so, that is one of the fundamental defects with the authorisation scheme that has now crept into the Bill in a subsection of clause 10. The House of Lords accepted that there was a need to make special provision, but it argued that there was a greater need for better oversight of the conduct of the intelligence services and armed forces in respect of conduct that would otherwise constitute an offence. The other place also argued that the defence was cast too wide in that it included law enforcement agencies. I recognise the strength of the second argument about the breadth of the defence, and we have now narrowed the application of the provision down, in effect, to the intelligence agencies and the armed forces—and nobody else. I am grateful to Members of the other place for drawing our attention to that defect.