Bribery Bill [Lords]

Without wishing to get into a discussion about a case that is still subject to the courts, I would say to the hon. Gentleman that we believe it appropriate, in those exceptional cases where it is a matter of national security, for the Attorney-General to have the ability to intervene where appropriate. Let me turn now to facilitation payments. There was some discussion about the extent to which facilitation payments, of whatever size, large or small, would still be classed as bribery. The reality is that facilitation payments, no matter how big or small and no matter what they are called, still amount to bribery. We have not included an exemption for such payments, despite what might happen in the rest of the world, including in the US, under the Foreign Corrupt Practices Act. There is no exemption in our existing legislation for facilitation payments. The Joint Committee agreed that facilitation payments should continue to be criminalised, saying:""A specific defence risks legitimising corruption at the thin end of the wedge."" We share the Committee's view that, in general, the Bill must prevent individuals from relying on local customs to justify corrupt practices or considering small facilitation payments to be appropriate. Tackling petty bribery is a key element of changing the culture of corruption, which is so corrosive, particularly in developing economies. We recognise that many UK businesses still struggle with petty corruption in some markets, but the answer is to face the challenge head-on, rather than carve out exemptions that draw artificial distinctions, are difficult to enforce, and have the potential to be abused. Providing exemptions for facilitation payments, as the US does, is not a universally accepted practice, and not something that we consider acceptable. The hon. and learned Member for Beaconsfield also talked about clause 10 and the amendment made in the other place. I am sure that we will return to that issue in Committee, but as my right hon. Friend the Justice Secretary set out in his opening statement, we will propose a further significant safeguard to address the concerns that were raised in the other place. We recognise the concerns about the use of the proposed defence, as well as those raised in this debate. We will propose that there should be a statutory duty on the heads of the intelligence services and the armed forces to ensure that appropriate arrangements are in place to ensure that conduct amounting to an offence under the Bill takes place only when the defence applies. Those arrangements would then be subject to approval by the relevant Secretary of State. That requirement will provide direct ministerial oversight of the internal arrangements put in place by the intelligence services and armed forces. For that reason—along with that given earlier by my right hon. Friend the Justice Secretary—we cannot accept clause 10 as amended in the other place. The hon. and learned Gentleman and the hon. Member for Cambridge both referred to parliamentary privilege and the fact that it is not specifically mentioned in the Bill. It is common ground that MPs should not be above the criminal law. However, the Joint Committee on the draft Bribery Bill argued that any evidential problems in relation to bribery offences should be dealt with in a separate parliamentary privilege Bill. In the light of the Joint Committee's conclusions, we decided against including provisions in the Bill on parliamentary privilege. Given the recent institution of criminal proceedings against three Members of this House, we believe it would be appropriate to wait and see what the court has to say in this matter before deciding whether to proceed with any further such legislation. My right hon. Friend the Justice Secretary has given a good explanation of why we inserted a statutory requirement into the Bill in the other place to produce guidance in respect of the clause 7 offence. We understand that businesses are looking for better guidance and a little more detail on how such offences might apply. We have also given a commitment that such guidance will be in place before the Bill is enacted and the offence comes into play. We are in discussions with business and various industries on that guidance, but it is fair to say that many industries already have good governance arrangements and strong guidance in place. We look to work with a range of companies to find the best of that guidance and build on it. I trust that the hon. Member for Huntingdon will question me further on that in Committee. The hon. Gentleman also asked whether the offence of failing to prevent bribery would trigger article 45 of the EU procurement directive, which requires the mandatory exclusion of suppliers for public procurement contracts for services, supplies and works. We are giving active consideration to whether conviction for the new corporate offence of failure to prevent bribery—the clause 7 offence—would require mandatory exclusion under the directive. That is not a straightforward issue, and there are a number of complex points that we need to consider. There is obviously a difference of view among European Union member states on how some aspects of the directive are being applied, but we will continue to look into the matter in further detail before coming to a view on it. The hon. Gentleman also asked about the application of the failure to prevent bribery offence to the activities of joint ventures and similar corporate structures over which a company does not have full control. Our purpose is clear: to encourage all those involved in joint ventures and similar business structures to satisfy themselves that adequate procedures are built into their governance arrangements. An organisation will be convicted of an offence under clause 7 only if a person performing services on its behalf bribes another to obtain or retain business for that organisation. It is possible for one person or a number of people to perform services on behalf of more than one company. It will depend on the particular circumstances of the case, but it may be that a bribe by a person performing services for one company in a joint venture is rightly regarded as being paid in connection with the business of any of the companies involved in that venture. Equally, it may be the case that, on the facts, the necessary connections are not present to establish liability under clause 7 if a bribe is paid in the context of a joint venture. Ultimately, it will be a matter for the courts to determine where liability stands. I trust that I have responded to most of the main points made by hon. Members in what I think has been a particularly good debate, in large measure because the Bill has backing and support across the House. I believe that we can, with commitment, get the Bill through the House, despite time pressures, and I trust that our opportunities to debate and consider further details in Committee will in no way hamper the Bill, which is essential to maintaining the UK's credibility as a country at the forefront of fighting bribery and corruption. I commend the Bill to the House. Question put and agreed to. Bill accordingly read a Second time.