Bribery Bill [HL]

With these amendments, we return to a thorny issue that divided us at an earlier stage—the defence in respect of conduct by the intelligence services and Armed Forces which would otherwise amount to an offence under the Bill. The House will recall that we grappled with this issue at some length during the proceedings on the Bill in January and February. That seems a little while ago now. At Third Reading, the House passed an amendment to Clause 10 which sought to introduce a discretionary authorisation scheme in respect of conduct which would attract the Clause 13 defence. I made it clear at the time that it was not an amendment that the Government could support. We have set out two key defects with what became subsections (6) to (14) of Clause 10, as introduced in the other place. First, the provisions would enable the Secretary of State to authorise conduct which amounted to an offence under Clause 6, namely the offence of bribing a foreign public official. This would have been at odds with the United Kingdom’s international obligations and, in particular, the OECD convention. David Howarth for the Liberal Democrats in the other place acknowledged that this was a critical defect and was reason enough on its own to remove the Lords amendment. The second major defect from the Government’s perspective was the fact that the amendment passed by your Lordships’ House undermined the utility of the Clause 13 defence in seeking to provide legal certainty for members of the intelligence services and Armed Forces. The amendment put forward by the noble Lord, Lord Pannick, and other noble Lords and noble and learned Lords purported to be a discretionary authorisation scheme, but its effect was to cast doubt on the operation of the Clause 13 defence in any case where prior ministerial authorisation for the conduct had not been given. In addition, we had concerns about the workability of the proposed authorisation scheme, given that it required conduct to be "specifically authorised". As I explained during our earlier debates, it is our firm view that a case-specific authorisation scheme would not provide the necessary flexibility to cater for complex and fast-moving operations in Afghanistan and elsewhere. For those reasons the Government invited the Public Bill Committee of another place to remove these subsections of Clause 10. The Committee agreed to the government amendment without Division. However, the Government have accepted the case put forward by the Constitution Committee of this House that there needs to be a measure of ministerial oversight on the operation of the defence in Clause 13. This is the thrust of Amendments 3, 4, 6, 7 and 8. Amendment 4 is the key amendment. It places a statutory duty on the heads of the three intelligence services and the Defence Council to put in place arrangements designed to ensure that any conduct that would amount to a relevant bribery defence is necessary for the proper exercise of any functions of the intelligence services and the Armed Forces. Such arrangements must be ones that the relevant Secretary of State considers to be satisfactory. As Amendment 4 provides, it would be for the heads of the intelligence services and the Defence Council to determine what arrangements to put in place, subject to the requirement that the Secretary of State considers them to be satisfactory. However, the matters which these arrangements might be expected to cover include, for example, internal guidance on the offences in Clauses 1 and 2 and the scope of the Clause 13 defence, and, in addition, the taking of internal legal advice in specified circumstances. I hope that our acknowledgement that there should be a degree of ministerial oversight is accepted by the House. Perhaps I may deal briefly with Amendment 5; and here we are grateful to the noble Lord, Lord Thomas of Gresford. In Committee, the noble Lord suggested that it would be invidious for two individuals to find themselves in the dock, one charged with an offence under Clause 1 and the other with an offence under Clause 2. The first person was a member of the intelligence services who had paid a bribe, while the second person has accepted the bribe in return for providing some information or other assistance to his co-accused. I indicated at the time that it was our policy that both individuals should be able to avail themselves of the defence. However, the noble Lord questioned whether the recipient of the bribe could meet the necessity test in Clause 13(1). On reflection, we agree that the policy intention could be better expressed. Accordingly, Amendment 5 makes it clear that if it is necessary in pursuit of a function of one of the intelligence services or Armed Forces for a bribe to be paid then it will be treated as necessary for the other person to receive it, thereby triggering the defence for the recipient of the bribe. The Clause 13 defence is a fundamental part of the Bill. The Government accept, however, that conduct by agencies of the state that would amount to an offence under the Bill needs to be subject to appropriate ministerial oversight. The amendments made in the other place provide for this while ensuring that such oversight can be exercised proportionately without undermining the operational effectiveness of the intelligence services and Armed Forces. I therefore commend the amendments to the House and beg to move.