My Lords, it is striking 3.45 pm and the monitor says that it is 3.45 pm. As is usual on these occasions, I advise the Grand Committee that, if there is a Division in the Chamber while we are sitting, the Committee will adjourn as soon as the Division bells are rung and resume after 10 minutes.

My Lords, Amendment 21 is also in the names of the noble Lords, Lord Goodhart and Lord Thomas of Gresford. I shall speak also to Amendment 32, which is in my name and those of the same noble Lords. Amendments 29 and 33, in the names of the noble Lords, Lord Goodhart and Lord Thomas, are also in this group.

Clause 12 offers a defence to certain charges of bribery if the person charged with a bribery offence can show that he was acting for a legitimate purpose. The defence is not intended to be widely available. Clause 12(1) details who may avail themselves of the defence. My amendment relates only to Clause 12(1)(a), which deals with law enforcement agencies, security agencies and the Armed Forces. Notwithstanding the limits in the Bill, noble Lords will be aware that the Select Committee on the Constitution considers that it may still be drawn too widely. The committee's first report of the Session deals exclusively with Clause 12. I have tabled these probing amendments to give the Minister the opportunity to explain and defend the drafting chosen by the Government. I would also be grateful if he would say when the Government will formally respond to the Select Committee’s report, which came out on 4 December.

We now have a date—2 February—pencilled in for Report. The Minister is nodding, so I expect that that date is right. The committee would find it useful to see the Government’s response in good time before 2 February, in case that influences how we respond, particularly in the light of what the Minister will say this afternoon, and whether we table any further amendments.

Amendment 21 and Amendment 32, which is consequential, deal with the first of the three categories where the defence may be raised—the situation that a person's conduct was necessary for,

“the prevention, detection or investigation by, or on behalf of, a law enforcement agency”.

The Liberal Democrat Benches will deal with their two amendments in due course. I stress again that my amendment is probing. It deletes that paragraph, which is—

Just to save time, perhaps I could point out that our Amendments 29 and 33 are purely consequential, like the noble Lord’s Amendment 32. Therefore it will not be necessary for me to speak to them.

I am very grateful to the noble Lord for that explanation. My Amendments 21 and 32 are designed to remove Clause 12(1)(a), which refers to,

“the prevention, detection or investigation by, or on behalf of, a law enforcement agency of serious crime”.

Clause 12(1)(a) casts a wide net. It includes not just the police but all law enforcement agencies and those acting on their behalf. The Select Committee on the Constitution notes that other organisations covered would include HM Revenue and Customs, the United Kingdom Border Agency, local authority trading standards, environmental health officers and others. It would be helpful if the Minister could give the committee a full and comprehensive list of all the agencies that will be covered, which under Clause 12 will be able to engage in bribery and get away with it if their actions are in pursuit of, or necessary for preventing, detecting or investigating serious crime, as defined by Sections 81(2) and (3) of RIPA, which is itself a wide definition.

The most striking remark made in the Constitution Committee’s report is:

“Drawing the defence in terms as wide as this jeopardises the constitutional principle of the rule of law”.

Those are very strong words from a highly respected committee of your Lordships’ House. I am sure that noble Lords will agree that there are good reasons, which we will debate shortly, why organisations involved in protecting national security have that defence under Clause 12, but there seems to be a less strong case for myriad domestic organisations to be given the go-ahead to commit bribery.

The report recommends in paragraph 12 that:

“Unless compelling evidence is produced as to why clause 12(1)(a) is necessary in respect of each of the law enforcement agencies to which it may apply, it should be omitted”.

I have tabled this as a probing amendment, and it is now up to the Government to do what they can to justify Clause 12(1)(a). No doubt other noble Lords will have comments that they wish to make, but I look forward to hearing the Government’s views on why the subsection is necessary. I beg to move.

My Lords, my noble friend Lord Thomas of Gresford and I have put our names to Amendment 21. In doing so, I make it clear that we regard the terms of the amendment as more than a probing amendment. As we now stand, it will almost certainly be our intention to ensure that the amendment is brought back on Report when it can be properly voted on.

The draft Bill, which we studied at the time of the Joint Committee, provides in Clause 13 that bribery would not be an offence if it was authorised by the Secretary of State. The Secretary of State could authorise bribery only if and in so far as it was necessary to the proper discharge of the functions of MI5, MI6 or GCHQ. The Joint Committee was not satisfied that bribery should be legitimated, even on the basis of there being an authorisation from the Secretary of State. I shall read what the Joint Committee said about that in paragraph 203 on page 68 of Volume 1 of the report on the draft Bribery Bill, and I should repeat, as I have said several times before, that the report of the Joint Committee was unanimous:

“We heard no persuasive evidence of a need for the domestic intelligence agencies to be granted an authorisation to bribe. Neither are we persuaded that this draft Bill is the appropriate vehicle to extend the security services’ powers to contravene the criminal law. Finally, we note continuing doubt about whether clause 13 complies with the United Kingdom’s international obligations, despite the fact that this issue was raised as long ago as 2003. For all these reasons we recommend that the Government remove clauses 13 and 14”.

The Government did not accept that recommendation by the Joint Committee. Not only did they not accept it, they came back with a new clause, Clause 12 of the present version of the Bill, which extended the power to bribe legally. Under Clause 12, not only are the security services exempted from liability for bribery if it is in the proper exercise of their functions, but Clause 12 also extends the exemption to law enforcement agencies and the Armed Forces when on active service. I regard this as extraordinary.

My noble friend and I will object to the inclusion of any part of Clause 12 when we come to the debate that Clause 12 should stand part; of course, we recognise that we cannot vote on that here. If Clause 12 is removed, that would get us back to the recommendation of the Joint Committee that the Bill should not contain legal exemption from bribery for anyone.

Our amendments in this group and the two groups that follow would exclude the exemption of the law enforcement agencies and the armed services. The amendments in this group, starting with Amendment 21, apply to the law enforcement agencies and remove them from the scope of Clause 12. That is plainly appropriate. The Serious Fraud Office and a senior representative of the police both said, in written evidence to the Joint Committee, that the exemption should not apply to them; I refer to paragraphs 191 and 321 of the evidence volume of our report.

The exemption from the bribery law is anyway unnecessary for the law enforcement agencies. It cannot be improper for someone with information that may lead to the conviction of criminals to disclose that information to the police, so neither the police nor the person who makes a disclosure can be prosecuted for the offence of bribery even if the police offer rewards for the information that they have received. There is absolute no need to retain Clause 12(1)(a).

I strongly agree with the views here expressed by the Constitution Committee. I repeat, slightly more fully than the noble Lord, Lord Henley:

“Drawing the defence in terms as wide as this jeopardises the constitutional principle of the rule of law. Unless compelling evidence is produced as to why clause 12(1)(a) is necessary in respect of each of the law enforcement agencies to which it may apply, it should be omitted”.

The other amendments in this group—29, 32 and 33—are purely consequential, and would remove parts of Clause 12 that would become irrelevant if Clause 12(1)(a) were removed.

My Lords, I support these amendments and agree with the noble Lords, Lord Henley and Lord Goodhart. One of the matters that influenced the Constitution Committee, of which I am a member, is that the Joint Committee noted at paragraph 195 of its report that the evidence that it had received from the police and the Serious Fraud Office on the defence for the intelligence services did not suggest that the police and the SFO themselves believe that they need any such defence for their own activities. It is therefore surprising, to put it mildly, that the Government have come forward with an amendment to the draft Bill which confers such a broad power on law enforcement agencies, themselves so broadly defined in Clause 12. Can the Minister tell us whether there is evidence to suggest that the absence to date of a power as would be contained in Clause 12(1)(a), were it to be enacted, has hindered in any way the effective performance of law enforcement functions to date?

My Lords, following on what has just been said by the noble Lord, Lord Pannick, and others, this is a remarkably big extension of what was set out in the draft Bill, and I hope that the Government will now give us an explanation of why this has happened. The intelligence services and GCHQ were included in the draft legislation we considered in the Joint Committee. Now we have a large range of law enforcement agencies—and it is a large range—as well as the security services and the Armed Forces, and it has never been explained. There is nothing about it in the Explanatory Notes whatever, and nothing in the Government’s response to the Joint Committee.

I am concerned about this because the Government’s defence of the original proposals in the draft Bill was that it was perfectly all right for the intelligence services and GCHQ because under the Intelligence Services Act 1994, first, you have to have a warrant from the Secretary of State issued in person or by a very senior official, and it lasts for only six months; secondly, that this is a special matter and it has been dealt with specifically by Parliament; and thirdly, there would be a review by a parliamentary committee of everything that had been done. Added to this Bill are the enforcement agencies, the security services and the Armed Forces for whom no provision is made for obtaining a warrant, no time limit on any authorisation that may be obtained, and no subsequent scrutiny of what they have done. That knocks all the chocks out from underneath the defence given by the Government to the original proposition because it is not now on all fours with what the Government originally proposed.

What is the process of authorisation going to be for this? Who is going to give it, and how long will it last? What scrutiny procedure will take place? Enforcement agencies are to some extent governed under RIPA and there is in place a procedure, of which I declare that I am a part, in that it is looked at by the commissioner in charge of RIPA affairs, but that is not the same as granting an authorisation in the first place, nor is there any time limit on it. Frankly, I do not understand why this large extension of these powers has been introduced without either any explanation or safeguards. Parliament is due an explanation from the Government of why this has been done.

My Lords, like others, I am struck by the difference between the draft Bill and the Bill now before us. The draft legislation was rather aptly headed,

“Authorisations for intelligence services”.

It is true, as the noble Lord, Lord Thomas of Gresford, has said, that the Joint Committee was opposed to this, but the Government have taken a consistent view on the issue of the intelligence services. They maintained at the time that it was necessary, they maintained it in their response to the Joint Committee, and they have maintained it again today. Although of course I subscribed to the Joint Committee report, I must say that I understand the Government’s concern about the intelligence services. We will see about that when we come on to that, but this amendment does not deal strictly with that, it deals with the law enforcement agencies—words which did not appear anywhere in the draft Bill examined earlier.

Like my noble friend Lord Colville, I think that we need to know why the Government have extended the defence in this new form—in a completely different form from that in the draft Bill—to this further category. It certainly requires a considerable effort of will to understand why that is necessary. I stand by the position I took on the draft Bill, but I have sympathy with the Government on the broad point about protecting the public interest in relation to the functions of the Security Service. However, I am not too sure why it is necessary to introduce all these other people into the defence for bribery offences. We definitely need an explanation of that.

My Lords, I agree. I do not want to delay more than I hope is necessary the Minister’s reply to these pressing invitations to explain what exactly has happened. Here we have this excellent procedure for scrutiny of a draft Bill, a draft Bill as put forward by a Government, who say to themselves, “Let us see what these people say about this”. Well, we know what these people said about it. Paragraph 203 of the report, which has already been read out, states:

“We heard no persuasive evidence of a need for the domestic intelligence agencies … Neither are we persuaded that this draft Bill is the appropriate vehicle to extend the security services’ powers to contravene the criminal law”.

Lo and behold, back come the Government, having seen what these people say about it, with an extension of these provisions. I should like to know quite what it is in the way of an urgent request for an extension of this Bill’s ambit. I should like to know what has led to this rather remarkable change of mind on the part of Ministers. Will the Minister explain, or give an example of, the extent of “law enforcement agency”? One reads at line 29 on page 8 of the Bill that “law enforcement agency” means,

“a public authority acting in pursuance of a duty of a public nature under the law of any part of the United Kingdom to prevent, detect or investigate crime”.

I want to know, if the Minister will oblige me, whether that would extend, for example, to the local weights and measures inspectorate, and if it does not, why not?

I shall speak briefly because almost everything has been said. I support these amendments certainly as strong probing amendments and await the Minister’s reply to the questions that have been put. Like the noble Lord, Lord Pannick, I sit on your Lordships’ Select Committee on the Constitution and I was on the Joint Committee on the draft Bill. The Minister will be aware that the Select Committee on the Constitution raised a number of questions, one of which was why the safeguard of there being a Minister responsible for overseeing the use of these powers had been removed. To quote it, the removal in the Bill of the safeguard of there being a Minister responsible is of itself a matter of constitutional concern. I see that the Minister is looking at me quizzically, but I await his reply. No doubt, it will be a very good one if he has grounds for being quizzical on this. The report of the Constitution Committee goes on to say that,

“it is not self-evident that such a defence should extend also to the Services’ statutory function ‘to safeguard the economic well-being of the United Kingdom’”.

There may be an answer to that; it seems a proper question to raise. Likewise,

“it is not self-evident that GCHQ requires the same statutory protection”,

as other parts of the security services.

There are important questions to be raised. We do not want the law enforcement authorities to bribe unless there is a powerful reason for doing so. I support what my noble and learned friend Lord Mayhew indicated in this respect.

My Lords, I agree with what has been said. I have two short questions. First, if this was necessary, why was it not in the draft Bill? Did something happen in the consideration of these matters? Secondly, can the Minister give us some idea of the circumstances in which it is envisaged that this clause might be appropriate? Can he give an example of a situation in which the enforcement agencies would require to bribe people?

My Lords, these amendments concern Clause 12, which provides a defence for law enforcement agencies, the intelligence services and the Armed Forces. These amendments would have the effect of removing from the scope of the defence the activities of law enforcement agencies in the prevention, detection or investigation of serious crime.

Obviously Clause 12 has attracted significant comment, both at Second Reading and today, and the Constitution Select Committee of the House has expressed a number of concerns about the scope of the defence. Before I get into the details of the amendment, I must emphasise in the strongest possible terms the importance that the Government attach to Clause 12. It is important on a practical level because, for reasons that I shall set out, there is an operational need for the defence. We do not seek to hide the fact that certain arms of the state may need to offer financial or other inducements that may amount to a bribe in order that they can effectively carry out their difficult functions. Clause 12 makes the position entirely transparent. However, it is also important as a matter of principle that we should deal with the issues highlighted by the clause in an open and transparent manner.

The police and other law enforcement agencies have an important role to play in protecting and defending the public from the threat caused by serious crime. Our objective is to ensure that these law enforcement agencies are not hindered in tackling serious crime. Often financial or other inducements may be the only way to obtain vital information. I am surprised that noble Lords think that that is not so, but that is what happens from time to time.

In the normal course of events a payment for assisting in the investigation of crime is unlikely to amount to bribery, but there are occasions in which such conduct could amount to an offence.

Can the Minister say whether in the past 100 years there have been investigations or proceedings brought against a police officer for offering money for information?

Not money for information in the sense that the noble Lord means, but I was just going on to say that where, for example, the provision of information involves inducing someone to breach an expectation of trust, it is not inconceivable that a prosecution could then follow. While this concerns an activity covered by the Bill—for example, in the course of a person’s business or employment—the use of an inducement could constitute an offence. All prosecuting authorities will apply the public interest test in deciding whether to prosecute any case submitted to them. We do not consider it satisfactory to leave law enforcement officers in doubt about the circumstances in which such conduct will be considered legitimate.

Can the Minister explain why, if this matter is so obvious, it did not appear in the Government’s original draft of the Bill?

There is nothing secret about that. A lot of work had gone on behind the scenes to work out clauses that would relate to law enforcement agencies, particularly the police. However, time was against us, the matter went to the Joint Committee and these clauses were not put into the draft Bill that the Joint Committee looked at. I am extremely sorry that that did not happen—it would have been much preferable. I am talking particularly here to the noble Viscount who chaired the Joint Committee so well. That is the reason: there is no secret about it. We were not ready to put such a proposal to the Joint Committee. However, we are ready in the Bill that is before the Committee today.

Perhaps I may pick up on the Minister’s statement that it might be necessary for agencies to bribe someone to breach what might be regarded as—in his words—“an expectation of trust”. That has a hint of the Bill, but is not the idea of breach of trust in the drafting of the Bill. Will he give an example? My impression is that it would not catch the payment of an informant. The informant would probably not be in breach of trust. He might be a wicked individual, but he would not breach any of the ingredients of the offence. A hypothetical example would be very helpful.

This example will be hypothetical. An advantage given to an employee of the company in order to induce that employee to divulge information could amount to a bribe if the passing on of the information would amount to a breach of the expectation that the employee would act in accordance with the position of trust that he or she holds vis-à-vis their employer. It would ordinarily be the case that an employee cannot pass on information that the company would regard as confidential without breaching such an expectation. The fact that the information that he or she is not permitted to divulge is of assistance to the authorities would hardly be irrelevant for these purposes. The police might check up with an employee in relation to good or bad behaviour. It may just be in order to exclude a particular employer from investigation. They may pay money to an employee in order to get an answer to that question. That is a theoretical example of where it is possible that a policeman, by paying money, might make himself guilty of the offence in Clause 1.

My Lords, this is very obscure. The Minister is talking about what is called, in the Regulation of Investigatory Powers Act, a covert human intelligence source. These people come in many shapes and sizes. They are sometimes paid and used to be known as informers. They are sometimes paid by the law enforcement agency to produce information which may or may not fall within the definitions of the Bill. I have never heard it suggested that what is done by way of paying them for that information and undercover work constitutes a bribe. The Minister is now saying that it does. If that is the case, the whole thing is subsumed into the machinery of RIPA, whereby there would have to be an authorisation for this, which would be given to the police or other law enforcement agency that is asking someone to carry out the job. Is it intended that this should be the authority that gives rise to the defence in the clause? If so, that is a complete novelty.

I am not saying, as the noble Viscount suggested I was, that it would necessarily mean that there was an offence of bribery committed under the provisions of the Bill; but it might. The noble Viscount has picked up on my example of a police officer working in a particular way. Police officers, in the same way as intelligence service officers, have to behave in a particular way sometimes to get the information that they require to do their extremely difficult job, and to preclude the fact that police officers might have to do that seems to me not to be a valid argument. I have tried to explain why we did not put this before the Joint Committee. The noble and learned Lord, Lord Mayhew, specifically asked me about that. Other departments were obviously in discussion with my department at that time and we were unable to conclude in time for inclusion in the draft Bill—

May I test the Minister’s patience? As I understand what he is saying, he is telling the Committee that the company, the employer, may have an expectation that the employee will behave with trust and will not reveal information to the police. I think that is his argument. I suggest to him that no company could reasonably have an expectation that an employee will not disclose to the law enforcement authorities information about a crime. If that is right, there would be no offence here of paying the employee to disclose to the police information about a crime.

The noble Lord is very clear about that. What if the inquiry that the police officer was making was to exclude the employer from being criminally involved in whatever was going on? What if that was the position? Money had been paid over, the employer would say, “I am completely innocent; I do not want my employee talking to the police and being paid money by the police to give information, whether good or bad, about me”. Are we saying that the police officer who paid the bribe would not in those circumstances be theoretically liable under Clause 1?

I wonder whether I could give a concrete example from my experience of a few years ago. I think it was police officers, but it may have been officers of the security services, who paid £20,000 to a lorry driver for information relating to millions of pounds’ worth of heroin that he was carrying on his lorry. Is that in any sense to be regarded as a criminal act on the part of the person who paid? To me, it is inconceivable. Secondly, do policemen go around worrying about paying over money to informers and asking themselves whether they are committing a criminal offence? It has been done for centuries. In this Bill, we are not suddenly criminalising some absolutely day-to-day activity of the police in paying for information. Are we?

I have given the example. Regarding information, which might be information about a crime on the part of the employer, if the employee gives information about an investigation of some other company or other person, it might be that the employer took the view that he did not want his employee to breach the position of trust that the employee was in vis-à-vis him. If that was so, why should it be any different from the position of the intelligence agencies, who might find themselves in the same position? I do not think it is enough for the noble Lord to say that this has gone on for hundreds of years and it therefore is completely impossible for there to be any allegation of bribery made against a police officer in certain circumstances.

I am sorry to interrupt the Minister but this is not at all realistic. The employer has nothing to do with this. The employer may be the subject of a police investigation. The only way in which the law enforcement agency—of one sort or another—can get the necessary evidence is to ask one of the employees to provide it. The employer does not know anything about this. The whole point is that it is done undercover. The informer certainly does not tell the employer, “I am in the pay of the police to tell them what is going on in our company”. This is simply not how it works. I hope the Minister will think again about this.

I have heard the strong views of the Committee; of course we will think again. That is why we have Committee proceedings: to consider the position. In due course I will make a concession on the width of the law enforcement agency panel that might be covered by Clause 12(1)(a).

We have tried to explain why the law enforcement agencies have now been brought into the Bill that is before Parliament, but were not in the draft Bill. We recognise that the creation of any defence in the Bill has to be proportionate and we have drafted Clause 12 in a way that ensures that this is the case. We have restricted the application of the defence to serious crime. In the interests of consistency, the clause, as it stands, adopts the definition of serious crime in RIPA 2000. The definition covers offences attracting, as the Committee will know, a penalty of three years or more, or which involve the use of violence, result in substantial financial gain or are conducted by a larger number of persons in pursuit of a common purpose. The limitation is an attempt to mitigate the risk of the defence being applied in respect of lower-level offences, preserving the ability of both the police and other relevant agencies to tackle the full range of serious criminal activity.

The second point that I put to the Committee is that it will fall to the person wishing to rely on the defence to demonstrate that his or her conduct was necessary to prevent, detect or investigate serious crime, should a prosecution be brought. Each case will be considered on its merits, and those concerned cannot take reliance on the defence for granted.

The Constitution Committee noted that the definition of “law enforcement agency” extended beyond the police to other law enforcement agencies, namely Her Majesty’s Revenue and Customs, the UK Border Agency and, perhaps more significantly, local authorities’ trading standards and environmental health officers. Although the police and the Serious Organised Crime Agency—SOCA—carry the most significant responsibility for combating serious crime, there are other agencies operating in this sphere that we should not lose sight of. The UK Border Agency has a key role in combating people smuggling. One way or another, the clause needs to capture all the relevant law enforcement agencies, but I accept that our approach may have cast the net too widely.

I have heard the concerns expressed in Committee today and at Second Reading, and the Constitution Committee’s opinion on this matter. I invite the noble Lord, Lord Henley, in deciding what to do with his amendment, at least to withdraw it today. I promise to reflect carefully between now and Report on what has been said generally as well as on whether this is too wide. I cannot at this stage commit to tabling on Report a government amendment to narrow the definition, but the concerns that have been raised in Committee have been noted. We will look at the matter at least as far as the width of “law enforcement agencies” is concerned; we will look with sympathy at attempting to amend that.

The noble Lord is extremely generous in giving way and he has been very fair, as he has always been. He said that the Government will consider whether they have cast the net too widely in the clause. I wonder whether he can answer my question, which was whether, as drafted, it extends to catching the local weights and measures inspectorate and, if it does, whether that was and remains the intention of the Government. Can he help us with that in advance of the review that he has promised?

There is no doubt that the clause is widely drafted. The Constitution Committee had it right when it argued that it could cover environmental health officers and trading standards officers of local authorities. The noble and learned Lord is right about that. The matter will be in the front of our minds when we consider whether we have drafted this part of the clause too widely. It covers public authorities that investigate “serious crime”, and I have been through that definition already.

The Minister mentioned the word “authorisation” but said nothing about ministerial authorisation, a point raised by the Constitution Committee. In the example given by the noble Lord, Lord Thomas, about the practice over a long period, a conviction for bribery or corruption required one to do something corruptly. In the Bill, it has been decided not to require corruption as part of the offence of bribery. It would be in strange circumstances that law enforcement authorities bribed someone corruptly but if that did happen—and one can see that it could—it would be very corrupt indeed. However, we are not talking about that. We are talking about payments to informants for good reason, and perhaps the Minister will reflect on that more fully when he considers the broad width of the present definition of “bribery”.

My Lords, the Minister asked me what I intend to do with the amendment. He knows the answer because, first, it is a probing amendment and, secondly, all amendments in this peculiar procedure are probing amendments. I shall withdraw it in due course but I wish to make one or two points before I do so.

My noble and learned friend Lord Lyell of Markyate said that no doubt the Government’s reply will be a very good one. The Government did not seem to have much support before the Minister made his reply, and every speech before that seemed to show that noble Lords had considerable difficulty with the inclusion of Clause 12(1)(a), particularly as there had not been anything like it in the draft Bill. Several Peers questioned why it was not in the draft Bill, particularly the noble Viscount, Lord Colville of Culross, who chaired the committee, and the noble Lord, Lord Goodhart, also intervened to make that point.

The Minister replied that time was against us. However, the Government have had 10 or 12 years to think through the Bill and I cannot see why time is against us. It seemed more of a “Homer nods” defence—except that in this case it was not Homer the poet but more Homer Simpson who was nodding.

At this juncture in the Parliament, the noble Lord should be careful about having too much fun at our expense in terms of the reason why this was not in the draft Bill. I advise him to be slightly cautious of certain eventualities. He will know from his time in government—it is a long time ago but he may just remember it—that matters of this importance are not discussed at all times. However, when they do come up for discussion, and when there is an intention to legislate, all relevant government departments need to be consulted and all the issues need to be considered. Let the noble Lord enjoy himself, of course, but I warn him to be slightly cautious about blaming us too much for the fact that we put before the Joint Committee a Bill that was not complete in every way. The Joint Committee is powerful enough, but your Lordships’ Committee is a good deal more powerful.

Is the Minister warning the noble Lord, Lord Henley, on the premise that he may be in the Minister’s place in a few months’ time? Is that what is behind his words, and is that an appropriate reason for the noble Lord to withdraw his amendment?

The noble Lord misunderstands me completely.

I will accept the advice of the Minister but I will remind him that a large number of those who have spoken also have some ministerial experience and, through our addled brains, can remember the difficulties of these matters. Even so, I repeat the fact, as was made clear at Second Reading, that the Government have had this Bill for some 10 to 12 years and so have had a chance to consider these points. Nevertheless, we have had a sort of concession from the Government. When I first listened to the noble Lord, I thought that we were going to get one during the course of this debate, but it amounts to the Government saying, through the Minister, that they will reflect on the issue. We look forward to the Government’s reflections and no doubt a letter will come from the noble Lord in due course. We will look at it and possibly bring forward further amendments at Report stage. I think it is clear to the noble Lord, from what the noble Lord, Lord Goodhart, said in his remarks, that there will be amendments, but it is quite likely that we may either join them or consider that in due course.

Perhaps I may also say that we noted the Government’s words—I hope that I am quoting the Minister correctly—that they,

“hope to respond to the Select Committee’s report before Report stage”.

I hope that the Government will reconsider the word “hope” and make a firm commitment to respond to the Joint Committee’s report before the Report stage because it is important that we have the Government’s full and considered response before continuing.

We will do that.

I thank the noble Lord for amending his words and thus, as it were, deleting “hope” from his previous remarks.

All I can say at this stage is that we have had a pretty full debate on the matter with a large number of eminent speakers, many of whom have considerable experience both of government and of the law. It is certainly something that we will want to come back to in the brighter light of the Chamber, if I may put it that way, rather than the gloom and obscurity of the Moses Room. No doubt we will have a fuller debate on this matter at that stage. In the mean time, I beg leave to withdraw the amendment.

My Lords, Amendment 22 has been tabled in my name and that of my noble friend Lord Thomas of Gresford. The other amendments in the group are all in the name of the noble Lord, Lord Henley. As I have already said, we would prefer to knock out Clause 12 altogether, and that will be argued when we come to debate whether the clause should stand part. If the clause is not removed, however, we would at least want to narrow the circumstances in which the security services can legitimately pay bribes.

The Security Service Act 1989, which is not amended in any way by this Bill, refers to the functions of these bodies as including the safeguarding of,

“the economic well-being of the United Kingdom”,

and supporting the activities of law enforcement agencies. But we believe that for functions other than national security, it is inappropriate to permit or legitimate bribery by the security service organisations.

It is clear from the OECD convention, which this country has signed up to, that the protection of the economy of the United Kingdom does not justify bribery, and indeed that was the issue at the root of the objections to the alleged activities of BAe. It is clear that bribery cannot legitimately be used by any organisation simply to obtain information that may safeguard the economy of the United Kingdom or which might lead to the retention of a valuable contract for the making of aeroplanes. That is clear from Article 5 of the OECD convention, and that was considered by the Joint Committee.

The same broadly applies to the assistance of the prevention and detection of crime. In the case of crime, disclosure of criminal acts to a police force is most unlikely to be the improper behaviour of the person who makes a disclosure, as has already been said. A court could not possibly regard this as being an improper act by an employee or an associate of the company if they were simply informing a police organisation or any other similar body of what is itself wholly improper behaviour by the employer or the company. We simply do not think that there is any serious possibility—any possibility at all, really—of this being necessary to be included in Clause 12. In those circumstances, we believe that it is desirable to restrict the power to the narrow issue of national security, whether something is authorised or not. We do not think that it is appropriate to include any of these provisions other than those relating to national security in the powers of the security organisations under Clause 12(1)(b).

My Lords, I also have amendments in this group. I shall speak to Amendments 23, 24, 25, 27 and 31, which were designed to explore as precisely as possible how the defence in Clause 12 might be used by the security and intelligence services and by whom. Amendment 23 would obviously have a similar effect to the amendment that the noble Lord, Lord Goodhart, has just moved. As the noble Lord explained in his introduction, they are reflections of the observation by the Select Committee on the Constitution that it is not self-evident that the Clause 12 defence,

“should extend also to the Services’ statutory function ‘to safeguard the economic well-being of the United Kingdom’”.

The point that the committee was trying to make, and which I would like the Minister to address, is that there may be a valid reason for allowing the defence to bribery to apply in circumstances beyond those where the security of the country is involved, and where other considerations, in this case economic ones, are at play. Once again, this is a good opportunity for the Minister to set out to the Committee his case for Clause 12(1)(b). We will listen carefully to what he has to say.

The other amendments in my group are also probing in nature. Amendments 24 and 25, on which Amendment 31 is consequential, would remove GCHQ from the lists of bodies in Clause 12(1)(b) that may use that defence. The report of the Constitution Committee queries why GCHQ might need to be able to bribe for a legitimate purpose. While I do not think I would expect the noble Lord to go into the minutiae of Security Service operations, could he say something here to justify the scope of Clause 12?

Amendment 27 is more concerned with the mechanics of the defence, by which I mean the practicalities of raising it. In paragraph 13 of the Constitution Committee’s report, it is recommended that the use of the defence should require prior authorisation from—in the case of the intelligence services—the Secretary of State. I hope the Minister can explain how any officers who have been required to bribe others received their authorisation. If officers for agencies of the state have acted legitimately, why do they require the defence in Clause 12? Is it not the case that the relevant Secretary of State should know what is being done on his instruction? If that is so, why would charges be brought? At what point in the process does ministerial responsibility take hold? I hope the Minister can address those points. Again, as I stressed in speaking to earlier amendments, these are probing amendments and we hope to hear what the Minister has to say.

My Lords, I am well aware that the noble Lords, Lord Thomas of Gresford and Lord Goodhart, take the view that we do not need the clause at all. That will still be tested because the question of whether Clause 12 should stand part has not yet been reached. I understand that. I will concentrate on the key point in Amendment 22—that is, how we define, if we so decide, the extent to which the defence is available to the intelligence services. In the draft Bill, the definition was much tighter than what we have now for two reasons. First, there was an authorisation. Secondly, you cannot find in the draft Bill the phrase “any function”. It is not there at all. In the draft Bill it depends on what is authorised by the Secretary of State. That is relatively restrictive.

In the text that we now have, it is relatively unrestrictive—if the word exists in English. It is almost challenging to say “any function”. It means that whatever you come across is covered by the defence. That has, of course, been challenged by the Constitution Committee. I think it is a mistake to extend it so widely. Like other noble Lords, I would like to hear what the Minister has to say about ministerial authorisation, and whether he would be prepared to think again about the reference to “any function”. There are various ways in which that could be corrected; some were mentioned in the Constitution Committee report and some in the amendments before us. As it stands, before any of these amendments are decided, the definition is extraordinarily wide and we need to query whether that is justified.

My Lords, the use of the expression,

“proper exercise of any function”,

may well introduce some form of restriction. I would like the Minister to focus on the word “proper”; I have a simple question for him. My noble friend Lord Goodhart has pointed out that, under the OECD convention, protection of the economy of Great Britain is not an excuse for bribery. Could the performance of a function by a member of the Security Service for the protection of the economy of Great Britain—for the safeguarding of the economic well-being of this country, which is one of the Security Service’s functions—ever be a proper exercise when it would contravene the convention to which we are signatories? In other words, are we not, by using the words “proper exercise”, confining ourselves to precisely the wording that my noble friend has put forward?

My Lords, I will look at Amendment 27 in the group. Does the Minister really know how this works? Let us suppose that we are talking about a paid informer who will give information to an enforcement agency—it does not matter which—about what is going on in his workplace. That is done at the moment under RIPA. Authorisation is obtained for a person to act as a CHIS—a covert human intelligence source—to find out what is going on and to be paid for it. The authorisation does not come from the Secretary of State, but from an authorising officer in the law enforcement agency. The officer will probably be of some seniority, but not necessarily at government level. It is just not practicable to put the burden of that authorisation on the Secretary of State. There are hundreds of informers and it simply could not be done that way: one must be able to rely on the provisions of RIPA, or the Scottish equivalent, in order to provide the defence. If that is what is intended, it is a very different matter from the warrant that is available to GCHQ or the intelligence services. That is carefully looked at by the Secretary of State and signed by him, or by a senior official in his absence. We are talking about two entirely different things. The scale is completely diverse. I hope that the Minister realises that this is not the same sort of situation as the one dealt with under the 1994 Act.

My Lords, I, too, will comment on Amendment 27 in the name of the noble Lord, Lord Henley. It raises an issue of fundamental importance about the need, as the Constitution Committee saw it, for a prior authorisation procedure, which was the safeguard contained in the draft Bill. A prior authorisation procedure would provide much greater certainty and place responsibility where it properly belongs: with the Secretary of State and his or her senior officials. It is unacceptable that any intelligence officer should decide for themselves to carry out an act of bribery subject only to the risk of a criminal prosecution. Cases of bribery by public officials in order to achieve an intelligence or security result would—I hope we can all agree—be very rare exceptions. Any such official act should be carefully considered in advance by very senior officers of state, not least to ensure that there can be no later dispute about whether the officer was genuinely acting for official purposes. I have very good authority for the proposition that it is an important safeguard that authorisation should be given by the Secretary of State or by a senior official. The authority is the noble and learned Baroness the Attorney-General, who I am delighted to see here. Paragraph 200 of the Joint Committee report refers to her evidence in which she told the Joint Committee that the prior authorisation procedure was “an important safeguard”. I respectfully agree with her.

My Lords, my noble friend himself said that Clause 12 casts the net too widely. The net is very overstretched here. I strongly support all the amendments. I will not repeat what I said at Second Reading—the noble Lord, Lord Goodhart, set out the case impeccably, and the reference to the OECD convention and the Constitution Committee echo the amendment of the noble Lord, Lord Henley, on authorisation. I simply deduce from the proceedings so far that the government text has been assailed on all sides. I do not see how it can survive Report. My noble friend also referred to a concession about width. I urge him that the concession should cover the subject of these amendments and thus make a good Bill an excellent Bill.

My Lords, I am glad that the noble Baroness, Lady Whitaker, spoke first, because what I shall say is on the same line. First, I want to comment on the situation that the Minister developed in discussion of the previous amendment on the possible need for bribery. My understanding of the law of confidentiality, as it is also part of employment law, is that confidentiality does not protect someone in respect of crime. In other words, if someone who is bound by the obligation of confidentiality reports a crime, that is not a breach of the confidentiality requirement. Therefore, the Minister's description or analysis is more likely to apply to a case where information is being sought without any real knowledge of whether or not a crime has been committed by someone who is employing a person to whom the advantage is given. It is that situation, against the definition used in the Bill, which could give rise to a question of bribery.

A little more than 20 years ago, I was given the responsibility of introducing the Security Services Bill to the House of Lords, which acknowledged the security services for the first time. Among its provisions, as your Lordships know, was the provision about interfering with property rights, which, I suppose, was at least part of the motivation for the Bill. The authorisation procedure was introduced for that purpose. I suggest to the Minister that if there is any risk of a crime being committed on behalf of the agencies—if that is likely or possible—the best protection for the rule of law is a prior authorisation either under RIPA, for cases that are sufficiently ordinary, or by the Secretary of State.

I would hope that the occasions on which such a thing would be allowed would be very few indeed, so it would be right for it to be the Secretary of State, on the whole—as noble Lords know, there are exceptions when the Secretary of State is not available. But certainly in relation to the security services, the authorisation should be at the level of the Secretary of State, in accordance with the general provisions of the Security Services Act. In any case, if there is a real risk of bribery being committed within the definition of Clause 1 or the other clauses, that should be subject to prior authorisation at the appropriate level.

My Lords, these amendments are all concerned with the Clause 12 defence as it applies to the functions of the three intelligence services. They reflect the concerns of the Constitution Committee and seek to limit the operation of the defence in various ways: first, by excluding bribery in pursuit of certain of the intelligence services’ functions from the ambit of the defence; secondly, by removing GCHQ from the scope of the defence—I know that is the subject of a probing amendment—and, thirdly, by providing that the defence can be deployed in proceedings only with the prior authorisation of the Secretary of State, which is likewise the subject of a probing amendment today.

Let me deal with these three aspects in turn. Amendment 22 seeks to restrict the application of the defence to conduct required in the exercise of the intelligence services’ national security function only. Amendment 23 is not as restrictive as it would enable the defence to be deployed in cases engaging the intelligence services’ national security and crime prevention and detection functions.

The purpose of subsection (1)(b) of Clause 12 is to provide a defence in circumstances where the Security Service, the Secret Intelligence Service and GCHQ may have to use financial inducements or rewards to carry out their relevant functions. As we have just been reminded, those functions are set out in statute. It is right that the Bill should mirror them and not take a selective approach which would undermine the ability of the services to discharge their legitimate purposes as previously endorsed by Parliament.

Moreover, in order to be effective, the defence cannot be focused on only part of the intelligence services’ statutory functions. All of the statutory provisions under which each of the services fulfil their respective roles refer to the three purposes on which their work focuses. These are national security, the economic well-being of the nation, and the prevention or detection of serious crime. Each of the relevant statutes deals with how the services exercise their functions in slightly different ways. The position of the Security Service is slightly different, but certainly the Secret Intelligence Service and GCHQ need to exercise their statutory functions across the entire range of the three purposes. That range is intended to cover matters that are of significant national importance but not necessarily matters that relate simply to national security. There is—this is the point I am trying to make—considerable overlap between the three purposes. They are not neat silos and it is not practicable to seek to distinguish one as being more important than another. It is true that the national security category is quite broad and would cover many operational needs.

The noble Lord, Lord Williamson, for whose general support I am more grateful than he knows, issued a gentle word of criticism about the expression “any function”, and said that there was no such reference in the draft Bill. However, the expression “a function” appears in Clause 13(4) of the draft Bill. I argue that it has effectively the same meaning as “any function” in the context of this Bill. What we are referring to here are the statutory functions contained in the Security Service Act and the Intelligence Services Act.

I shall give an example of the response of the services to a planned terrorist outrage. It is obvious from this that it could fall within two or three of the statutory functions that I have just outlined. If there were a planned attack on a power station, the response might amount to action to protect national security and to protect, quite legitimately, the economic well-being of the nation. Other operations might fall entirely under one or other headings.

Similarly, information-gathering on the part of GCHQ or the Secret Intelligence Service, in support of a number of linked investigations into large-scale fraud or other financial irregularities that are of significant relevance to the economic well-being of the UK, may not naturally fall within the scope of the national security category. Perhaps of even more significance is the fact that a single operation may comprise a number of parts, each of which may fall to different categories.

The point is that it will not always be clear, at least not always initially, what precise function the conduct in question related to. Moreover, it would be wrong to deny the defence where the conduct occurred in the pursuit of one of the functions that Parliament had actually conferred on the services because it appeared, on a later analysis, that the case did not fall within the scope of one specific function. Our proposition is that reliance on the national security category alone would be inflexible and, frankly, operationally ineffective.

I know that some noble Lords will be particularly concerned about the inclusion within the scope of the defence of conduct on the part of the services in order to protect the economic well-being of the nation. There is nothing particularly mysterious about this category of work by the services. Under this heading, the services might act to safeguard and/or obtain intelligence in the interests of the national economic interest. Clause 12 expressly excludes any offence involving bribery of a foreign public official, thereby complying, we would argue, with the OECD convention.

To go back to economic well-being, the services may, for example, employ conduct that amounts to bribery under the Bill in order to monitor events and trends that might have a serious effect on the UK economy as a whole. That would include intelligence on instability in a part of the world where substantial British economic interests were at stake or where the economic well-being of the UK was threatened by hostile states seeking to undermine this country’s economy or to use economic levers as hostile policy tools. The services may exercise their functions in support of UK foreign policy where adverse economic or political developments overseas pose a serious risk to UK or global economic security.

Another example would be to provide warnings of threats to the supply of energy, commodities or raw materials on which the UK is especially dependent, or perhaps to identify external attempts to manipulate commercial markets, especially when such actions could undermine confidence in the City of London or affect the stability of other financial markets.

I hope that the Committee—especially those who have been Ministers; the noble Lord, Lord Henley, reminded me that many noble Lords here have been very senior Ministers in the past—will appreciate that I cannot give examples of actual operations. I hope that noble Lords can surmise that the UK intelligence and security services may seek to identify, recruit and run sources in a manner that may sometimes involve the use of conduct that would amount to bribery under the Bill in order to allow reporting on these intelligence requirements. This would be done only where such conduct was assessed as necessary and proportionate in accordance with the services’ respective statutory functions. Further, in all cases the matter must be one of national significance, and the aim of operations conducted under that heading is to allow the Government to take actions appropriate and consistent with obligations under national, EU and international law.

Amendments 24, 25 and 31 would exclude GCHQ from the operation of the defence. GCHQ can exercise its intelligence function only in relation to national security, the economic well-being of the UK and the prevention and detection of serious crime. In other words, the exercise of this function is exactly limited in the same way as those of the Secret Intelligence Service and the Security Service.

Despite GCHQ’s focus and expertise on all matters relating to communications monitoring, it would be wrong to assume that the organisation does not also fulfil a more active operational role. It is true that, compared to the other intelligence and security services, there are far fewer circumstances in which GCHQ would need to do things that would be an offence under the Bill; in particular, the scenario of rewarding an agent for information of intelligence value would seldom arise. However, I emphasise that that does not mean that there are no relevant circumstances that could apply to GCHQ.

In order to maintain a strategic interception capability and to continue to provide intelligence on certain targets critical to our national security, GCHQ may need to provide equipment or assistance to individuals who are in a position to support its interception mission in challenging environments. The Committee will of course understand that it would be potentially damaging to intelligence capability to provide particular examples. However, I can indicate that, in some cases, the provision of equipment or other assistance would be likely to constitute the conferring of an advantage as an inducement to undertake, or reward for, conduct that would amount to a breach of an expectation that the person will act in accordance with the position of trust owed to their employers; in other words, it would be an offence under the Bill.

To avoid doubt, and in order to allow GCHQ to reassure its staff that any such activity that is a proper exercise of its functions is within the law, the Government believe that the defence in the Bill should be available to GCHQ on the same basis as the other services. Moreover, this role may of course be fulfilled in partnership with the other services. The inability of GCHQ to deploy inducements where it is necessary in order to fulfil its operational role could obviously potentially compromise operational effectiveness of all three intelligence services. It would therefore clearly be wrong to exclude GCHQ from the scope of the defence,

Finally, Amendment 27 would limit the use of the defence by requiring the Secretary of State to authorise its use in proceedings. A similar proposition has been put forward by the Constitution Committee, which argued that,

“the use of these defences should be made dependent upon prior authorisation”,

by the Attorney-General or Secretary of State. As the Committee will recall, the Government put forward an authorisation scheme in the draft Bill. However, it did not find favour with the Joint Committee when it examined the Bill; we have already had that paragraph read to us. That authorisation scheme provided for a system of authorisations prior to the conduct in question. A different approach would be to require authorisation after the conduct had occurred but before the defence was deployed.

Having reflected on our original proposals in the draft Bill and the Joint Committee’s response to that Bill, our view is now that the defence in Clause 12 is preferable to an authorisation scheme, whichever of the two models, prior or post, is adopted. In contrast to the authorisation scheme in the draft Bill, the Clause 12 defence is case-specific and ensures that the necessity or otherwise of the conduct is tested by reference to the roles of individual people and the particular circumstances of individual cases. Ultimately, whether the defence is made out could be a matter for the court or jury to determine.

Noble Lords will remember that the draft clause referred to class authorisations and authorisations that lasted for a long time; it was unspecific and wide. The proposals here are preferred. We are not persuaded that the defence should be augmented by an authorisation scheme of the kind provided for in Amendment 27. That would require the Secretary of State to authorise the use of the defence in a particular case. Such a scheme would have some of the same drawbacks as a reliance on prosecutorial discretion; there would be no certainty at the point at which an offence was committed that the defence would be available. It would be an unwelcome and ill-advised development in our criminal process for a Minister of the Crown to decide whether a statutory defence should be available to an individual charged with an offence in a particular case.

Such an arrangement would be all the more objectionable if prior authorisation had to be given by the Attorney-General. The Attorney-General would have an overall responsibility for the prosecuting authorities who would be bringing the case and would be put in an invidious position if she were also to have the role of deciding whether a person being prosecuted could or could not rely upon a defence. In any event, we are not aware of any other example where a law officer or a Minister is given a power to decide whether or not an individual who is being prosecuted for an offence can rely on a defence to a charge. Moreover, we consider that to combine the defence with an authorisation scheme would introduce unnecessary duplication into the Bill. A prior authorisation would negate the need for the defence and vice versa. The scheme proposed in the Bill represents the most appropriate response to this issue.

I hope that the noble Lord, Lord Goodhart, having heard the arguments I have employed, is persuaded to some extent. Under the rules, he will have to withdraw his amendment today but I hope I have persuaded him to do a little more than just that.

My Lords, how does the Minister anticipate that the system he is advocating in the Bill will operate in relation to the security services? Is it feasible that security services’ operations should be considered in detail in a criminal trial? It is like the situation with intercept evidence. How will it work? I know there is a possibility of closing the court in certain situations, but details coming into an open court, whether in private or in public, involves a degree of difficulty at the least.

The noble and learned Lord makes a good point. We should not forget that prosecutorial discretion always exists under the law. When considering the case in or his or her independent way, the prosecutor will obviously have to have in mind the defence in the Act in deciding whether or not a prosecution is appropriate in the circumstances. Given that the defence will be on the statute book—I am being frank with the Committee—we expect that many cases might end there. However, it would not preclude a trial if the prosecutor decided that a prosecution was appropriate, in which case the issues raised by the noble and learned Lord would come about and the court would have to find a way of dealing with extraordinarily sensitive evidence. However, we do not anticipate that that would happen very often.

My Lords, once again we have had an interesting debate in which there has been no support for the Government. There is criticism of what the Government are proposing in Clause 12 in the powers covered by Amendment 22. I have made my arguments on that and I do not want to resume them, but I want to mention some of the other amendments in the group.

Amendment 23 is more limited than our Amendment 22, because it does not eliminate the right to legitimate bribes in cases involving serious crime. However, it strikes out the provisions of Clause 12 that extend to cases where there is potential bribery for the purpose not of preventing damage to national security or of preventing crime, but of preventing something that will damage the British economy. Both my Amendment 22 and Amendment 23 of the noble Lord, Lord Henley, remove the possibility of legitimating bribery for economic reasons. I believe that that is required by the OECD convention, which we should plainly stick to.

I understand that there may be an overlap between the three different purposes here, but it is absolutely clear that bribery to protect our economic well-being is not, on its own, a ground for bribery. If the damage to the British economy comes through a fear of a terrorist programme to blow up some of our leading industrial works, it is obvious that that would fall within the national security exemption, and it would not matter that it was also causing damage to the economy. The fact that it causes damage to the economy is not an automatic bar if there are threats to national security. That argument is wholly irrelevant. I have already said why I think that we should also omit the provision for crime, as well as damage to the economy. Damage to the economy may perfectly well be a matter for the security services to investigate and try to obtain information about. Nothing that I have said would alter that. That remains a power, but to use that power by means of bribery is wholly inappropriate.

The other matter that raised debate is Amendment 27, which requires the authorisation. I think something has gone a bit wrong with this amendment because it appears to require an authorisation before the defence can be raised. It seems to me, and most of those who have spoken on this issue have assumed this, that the authorisation would be required before the bribery took place. That is an entirely different situation, and while I can certainly see objections to authorisation acting purely as a pre-requirement to the prosecution, which is what was done with Clause 13 and the provisions in our report, I am persuaded that there are justifiable reasons—

I am sorry for interrupting the noble Lord, but the reason why I have made the argument about an authorisation after the bribery is to be found in paragraph 13 of the Constitution Committee’s report:

“Even in the event that compelling evidence is brought forward demonstrating a clear need for the defences in clause 12(1)(a) and clause 12(1)(b), the use of these defences should be made dependent upon prior authorisation”.

That refers to Clause 12(1)(a).

Clause 12(1)(b).

It goes on to say:

“For the defence in clause 12(1)(b) such authorisation should be the responsibility of the Secretary of State”.

The report says at paragraph 198 on page 67:

“The 2003 Joint Committee called for the Government to reconsider its options, including the potential for narrowing the power of authorisation so that it excluded any act of bribery in pursuance of the UK’s economic interests”.

It is clear that that means that what is authorised is the act of bribery; it is not authorising the use. Nor would it make much sense to say that what has to be authorised is the use of this for defence.

I agree with the noble Lord; that is what the 2003 document says. I am referring to the Constitution Committee’s document. Perhaps that is what it means, but it does not make that abundantly clear.

It certainly does not make that clear. I have no doubt that the Joint Committee was acting on the assumption that the “authorisation” was the authorisation of the act of bribery, which puts an entirely different picture around it. While I am not in a position to say whether the noble Lord, Lord Henley, considered this point when the amendment was being drafted, there are real grounds for saying that if bribery is to remain within the power of the security services, there must be authorisation before the act of bribery. That would of course eliminate any need for a trial. It might get the Secretary of State into trouble if the Secretary of State had authorised something that was regarded as improper, but it would mean that the individual who was responsible for the payment of the bribe was not facing a prosecution.

It seems to me that that is a much better system. It is not right to leave this decision to someone in the front line, so to speak, of the security services, who may not, for example, be in a position to get legal advice. This is something that I hope the Government will reconsider.

Will the noble Lord accept from me, as the only member of the Constitution Committee here today, that it certainly intended to address the question of prior authorisation for the act of bribery, which, as I think the Minister suggested, must be the logical position? Whether it is the appropriate policy is a different matter. I hope it is in order to ask whether the noble Lord, Lord Goodhart, could confirm my understanding that the Joint Committee did not reject, as a matter of procedure, prior authorisation. I think the Minister suggested that this was the case. I understood the Joint Committee simply to reject in paragraph 203 the substance of the suggestion in the draft Bill that there should be, for domestic intelligence services, an authorisation to bribe. There was no rejection, as I understand it, of the desirability of a prior authorisation procedure if it were appropriate to have a defence for acts of bribery in this context. Have I misunderstood this?

Paragraph 13 of the Select Committee’s report states:

“Even in the event that compelling evidence is brought forward demonstrating a clear need for the defences in clause 12(1)(a) and clause 12(1)(b), the use of these defences should be made dependent upon prior authorisation”.

It is ambiguous. It could mean that you could not use the defence unless you had authorisation for it, but I do not think that was the intention. The other plain meaning is that you cannot use the defence unless there has been prior authorisation for the act of giving that is the subject of the particular offences. That is an ambiguous statement, but I think the meaning of the Select Committee is clear.

The Joint Committee said that it,

“heard no persuasive evidence of a need for the domestic intelligence agencies to be granted an authorisation to bribe”.

There are, of course, several Members here who may take a different view. I understood that to mean that it was on the assumption that if there was a bribe it would have to be authorised, but there was no need for the domestic intelligence agencies to be granted an authorisation to bribe. So, the position would be that there would be no bribery.

That brings my contribution to an end. I beg leave to withdraw Amendment 22.

My Lords, I move Amendment 26 and speak to Amendments 28 and 30, which are in my name and that of my noble friend Lord Thomas of Gresford. These amendments would remove paragraph (c) from Clause 12(1). It exempts the Armed Forces on active service from liability for bribery.

This is an entirely new proposal. It was never put to the Joint Committee. Of course, the Joint Committee considered whether the power should be extended to the police and other similar organisations. It was never put to the Joint Committee and no evidence was presented to justify it. Why have the Government decided that the Armed Forces need the protection of the right to bribe under Clause 12? Do the Armed Forces go around bribing people in the way that bribery is defined in Clauses 1 to 6? Can we imagine any circumstances in which any member of the Armed Forces, acting in the proper exercise of their functions, is at risk of prosecution in the United Kingdom? I wait with interest the Minister’s explanation of why Clause 12(1)(c) is thought to be necessary now but was not thought to be necessary when the predecessor of the Bill was presented to the Joint Committee. The provision is entirely pointless and Clause 12 would be better without it. I await the Minister’s explanation.

My Lords, there is a further curiosity about paragraph (c) in that it is a defence only if the member of the Armed Forces is engaged in,

“an action or operation against an enemy … outside the British Islands … or the military occupation of a foreign country”.

So the basic concept is that we are dealing with the Army abroad.

However, it is a defence only to a relevant bribery offence that is defined as,

“an offence under section 1 which would not also be an offence under section 6”.

Under Clause 6, which refers to the bribery of foreign public officials, a member of the Armed Forces would not have this defence if he went along to the head of a village in Afghanistan, shall we say, who was holding a legislative, administrative or judicial position, or exercising a public function, and sought to bribe him.

Before the noble Lord pursues this point, perhaps he will look at the definitions in Clause 6. He is right about Clause 6(1), which states:

“A person … who bribes a foreign public official … is guilty of an offence if P’s intention is to influence F in F’s capacity as a foreign public official”.

However, Clause 6(2) states:

“P must also intend to obtain or retain (a) business, or (b) an advantage in the conduct of business”.

Clause 6 is defined by business as opposed to any other consideration.

What is “business”? Let us suppose, for example, that an Army officer wants to obtain something for his forces—food or whatever—and he goes to the head man of the village and gives him a bribe in order to obtain that particular item. That is business but he has no defence. He would have a defence if he was talking to a shopkeeper but not if he is talking to the head man of the village. It is an absolute nonsense and that is why I support the amendment.

The question that the noble Lord, Lord Goodhart, is really asking is why a provision for the Armed Forces was not included in the authorisation scheme of the draft Bribery Bill. It is a good question and I shall try to answer it. We intended to include a provision in relation to the functions of the Armed Forces, as I think our response to the Joint Committee’s report makes clear. However, there were challenging timescales and, because of our wish to afford the Joint Committee as much time as possible to consider the Bill and our discussions with other government departments, we were unable to complete the necessary consultations in time. That is the reason why it was not included in the draft Bill. I regret that it was not, of course; it would have been much better if the draft Bill could have included what is in this Bill. However, the noble Lord asked for an explanation and that is the explanation I give.

I shall now deal with the arguments that the noble Lord, Lord Goodhart, has put forward.

Can the Minister tell us whether there are any examples in recent years of prosecution authorities being asked to consider prosecution of a member of the Armed Forces for alleged bribery in the course of the performance of Armed Forces functions?

I am not in a position to answer the noble Lord. There may or may not be examples, but I do not think that that takes away from the force of giving the Armed Forces the protection of this defence in the Bill.

This has been a very short debate, unlike our previous ones. I am not sure that it has enlightened much further what is a rather difficult and unclear situation. That is something which we will consider further, but, for the time being, I ask leave to withdraw the amendment.

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.

My Lords, I wonder whether the idea that nods should be outlawed is necessarily all that bad in the circumstances. In 1989, when the security services were first acknowledged, the view was taken that where the law was being breached in relation to property the Secretary of State should give an authorisation. There is not much doubt that, apart from that, the prosecutor would be informed of the situation and it would be unlikely to give rise to a prosecution. However, it was thought right as a matter of policy that the Secretary of State should be involved. Then there would be no question of prosecution at all, and the person in question would not have breached the criminal law.

I wonder whether it would not be wise to think about that for this clause because there is no doubt that if the security services or the Armed Forces are in danger of breaching, for example, the provisions of Clause 1, they should be protected by a system that takes responsibility for that at an appropriate level—either through RIPA or the Secretary of State.

The idea of simply blotting this out altogether is not in accordance with such thinking as there was in 1989. It was right to acknowledge that things of this kind could happen, but that the Secretary of State had to authorise them. That was the safeguard and ensured that what happened was properly in the national interest. It was not a question of leaving it to the prosecution. The question of whether there had been interference with property rights could have been addressed in 1989; Section 4 of the 1989 Act has that particular provision in it. Certainly the view taken at the time was that it was not right for the person in question to be treated as potentially a criminal, subject to the prosecution not going ahead for reasons of public policy. So far as these provisions are necessary, and that is what the Minister has been justifying to us this afternoon, it is right that they should not be offences at all. They should be taken out of that category by the relevant authority at the highest level—depending on the nature of the situation, either through the RIPA system or the Secretary of State.

From what I have heard from the Minister, this is something to be justified. I am not dealing with the detail of which authorities or services should be included, but insofar as it is right to include the services, I believe that the 1989 wisdom should prevail.

I agree respectfully with the noble and learned Lord that insofar as there is a need for any of these subsections, prior authorisation is the route forward. I say that because the Minister emphasised earlier in our discussions that the Government are anxious to ensure transparency and certainty. I would suggest that a prior authorisation procedure through the Minister, or if he is unavailable a very senior official, would achieve those objectives. Such a procedure would do so far better in this context than leaving matters to assessment by a prosecutor, who will consider necessity after the event.

My Lords, perhaps I may intervene briefly. We can put it simply if we say that during the course of our various debates today some concerns, to say the least, have been expressed about Clause 12. We are grateful for the fact that the noble Lord has promised in particular to reflect on Clause 12(1)(a), the paragraph about which we have the most concern. In my view, there are slightly fewer concerns about subsections (1)(b) and (1)(c). We are glad that the Minister will consider bringing forward something before Report stage, which is now just under three weeks away, so he has a certain amount of time to consult colleagues in the rest of the Government.

He also gave a firm promise to produce the Government’s response to the Select Committee’s report, which will in effect be part of the Government’s reflection on the general concerns about Clause 12. Again, we are grateful that we now have a firm promise that we will have that before Report. At that stage, we would want to consider what was appropriate about that clause. On this side, our concerns were more about Clause 12(1)(a) than about 12(1)(b) or 12(1)(c).

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.

My recollection is that the first Joint Committee on the draft Corruption Bill threw out the authorisation idea, not on the grounds of authorisation per se but because the way it was presented was too broad and included the national economic interest. I do not think there was an explicit rejection of the concept of authorisation for the actions of the security services in the interests of national security.

I am grateful. I cannot argue with those who served on the committee. I can refer only to the first line of paragraph 203 which states:

“We heard no persuasive evidence of a need for the domestic intelligence agencies to be granted an authorisation to bribe.”

On the face of it, that seems a clear-cut view of the committee.

The passage the noble Lord has just read out shows that the noble Baroness, Lady Whitaker, is correct. The basis upon which authorisation was sought was too broad in the opinion of the Joint Committee. The passage the noble Lord has just read—I do not have the report in front of me at the moment—suggests that it thought the basis upon which authorisation was sought in the draft Bill was too wide. Authorisations are well established in statute and in statutory provisions relating, for example, to the security services. I would have thought them to be the best way forward in this difficult area—assuming, of course, that there is a need for exemptions from the bribery provisions in respect of such services.

I wonder whether there is some confusion between the 2003 Joint Committee, which thought that the authorisations requested were too wide, and the—

That is the one I was referring to.

That is the one to which my noble friend Lady Whitaker referred, whereas I am looking at the Joint Committee that reported last year. It is from that committee’s report that I quoted paragraph 203.

Of course we have to consider the authorisation path but we think that it would too burdensome, in the best sense of that word, for a busy Secretary of State if they are to do the job properly. It would take up too much of his or her time to have to make decisions on every possible case of bribery under Clause 1. A better, more transparent way is to put the offence in the way we have and to have the defence in Clause 12. When a prosecutor looks to see whether a prosecution should or should not go ahead, he will consider the defence in Clause 12 and then make his or her decision. Those are the grounds on which we, on balance, have come to the view that our Clause 12 is to be preferred.

I know that its existence has tempered what has otherwise been a warm welcome for the rest of the Bill. I have to remind myself that the Bill has received a warm welcome generally. Indeed, I think the noble Lord, Lord Williamson, described it as a “love fest” or something like that, at Second Reading. Today has been a strange love fest but it is perhaps good for the soul. However—this is a serious point—in relation to the Bill as a whole, the Committee should be in no doubt about the importance that the Government attach to this clause. We acknowledge that the definition of a law enforcement agency is potentially too wide and I have already undertaken—I do so again—to look at that aspect of the Bill. We remain firmly of the view that the defence is needed and fully justified. Today, inevitably, the clause will be agreed, but I hope I have made noble Lords more content about the existence of Clause 12.

The Minister talked about there being a mechanism in the Bill that would prevent there being a criminal offence. I would like him to go away and think of this, if he would be so good: there are two people in the dock; one of them is a police officer who has paid money to the other person in the dock. When it comes to trial, the police officer produces his defence that he was exercising a proper purpose and is acquitted. The second person does not have that defence. I am sure that the Minister would agree that the second man would not automatically become not guilty simply because the police officer had succeeded in proving his personal defence. The existence of bribery therefore continues and the second man is convicted. That is why I want the Minister and his team to think about this.

We have thought about this issue. Our view is that the co-accused standing in the dock, the person who received the bribe, has the defence in the same way as the person who offered the bribe.

It does not say that in the Bill at all. He is not a member of the security services or any other agency. If that is the case, surely the Minister ought to make it absolutely explicit in the Bill that the co-accused, the person who receives the money, is not guilty if the police officer, for example, succeeds in his defence.

If the noble Lord would be good enough to look at Clause 12(1), it is a defence for a person charged with a relevant bribery offence to prove that the person’s conduct was necessary for paragraphs (a), (b) and (c). That can apply both to the person who gives the bribe and the person who receives it. Indeed, there is reference in the Bill—I am grateful to those behind me—which defines a “relevant bribery offence”. It means,

“(a) an offence under section 1 which would not also be an offence under section 6,

(b) an offence under section 2”,

which refers to the receiver of the bribe.

My Lords, I am surprised that the person standing in the dock has to prove that his conduct in receiving the money was necessary for the proper exercise of any function of the security service. That seems an extremely difficult way of putting it. No doubt the Minister would like to think about the wording of that; it should be made a lot more explicit than it actually is. I had assumed throughout our discussions this afternoon that this defence was open to a member of the particular organisation referred to. If I am wrong in that, I am delighted to hear it.

Why, in that case, would Section 2 be mentioned at all?

Because the bribery might be made to the police officer for the performance of his functions. I do not know; it clearly needs to be looked at carefully.

We will no doubt welcome a discussion with the Minister to make what we have always said is a good Bill better through the clarification of this. The noble and learned Lord, Lord Mackay, has pointed out that it is far better for there not to be a bribery offence committed in particular circumstances. If a person has authority to do what he does, he has not committed a criminal offence. That has a knock-on effect for the person who is standing in the dock with him when the trial takes place. No bribery offence is committed.

Let us take the situation where the first police officer successfully runs the defence and the person standing alongside him does not persuade the jury—and remember that the burden is on the defendant—that that defence is open to him. All kinds of problems can arise out of the wording of this clause and I will no doubt return at Report to say that we should do without it.