My Lords, before the House begins the Third Reading of the Bribery Bill, it may be helpful for me to say a few words about Third Reading amendments. The House has agreed a procedure for addressing amendments which, in the view of the Public Bill Office, fall outside the guidance in the Companion and the rules set by the Procedure Committee. In line with that procedure, the Public Bill Office advised the usual channels on Friday that some of the amendments on the Marshalled List for Third Reading today fall outside that guidance. On the basis of that advice, the usual channels have agreed to recommend to the House that Amendments 1, 2 and 5, in the names of the noble Lords, Lord Thomas of Gresford and Lord Goodhart, should not be moved. As ever, this is ultimately a matter for the House as a whole to decide.
Clause 1 : Offences of bribing another person
Amendments 1 and 2 not moved.
Clause 10 : Consent to prosecution
3: Clause 10, page 7, line 2, at end insert—
“(6) Consent may not be given for the institution of proceedings under subsection (1) or (2) in respect of conduct which was specifically authorised in advance under the hand of—
(a) the Secretary of State, or(b) a senior official, but only if the Secretary of State has expressly and personally authorised the giving of the authorisation and considers the case to be urgent, and a statement of those facts is endorsed on the authorisation.(7) An authorisation shall not be given for the purposes of subsection (6) unless the Secretary of State is satisfied that the conduct is necessary for one of the functions stated in section 13(1).
(8) An authorisation for the purposes of subsection (6) ceases to have effect—
(a) at the end of the period of 6 months starting with the day on which it was given, if it was given under the hand of the Secretary of State, and(b) at the end of one week after the day on which it was given, if it was given under the hand of a senior official.(9) Subsection (8) does not apply if the authorisation is renewed under subsection (10) before the day on which it would otherwise cease to have effect.
(10) The Secretary of State may renew an authorisation for a period of 6 months starting on the day on which it would otherwise cease to have effect if, at any time before that day, the Secretary of State considers it necessary for the authorisation to continue to have effect for the purpose for which it was given.
(11) Subsection (10) may apply more than once.
(12) A renewal under subsection (10) must be made under the hand of the Secretary of State.
(13) The Secretary of State must cancel an authorisation if he is satisfied that an act or omission authorised by virtue of it is no longer necessary for the purpose for which it was given.
(14) For the purposes of this section, “senior official” has the meaning given by section 81 of the Regulation of Investigatory Powers Act 2000.”
My Lords, with the agreement of the House and of the noble Lord, Lord Goodlad, perhaps I may move Amendment 3.
Each of the amendments in this group seeks to improve on the wording of Clause 13, the better to implement the objectives—which I believe are shared across the House—of ensuring that acts of bribery are carried out on behalf of the state only when necessary, and that officers of state are given as much assistance as possible in advance in order to know when it is permissible to carry out such an act. Clause 13 is deficient in relying on a criminal prosecution after the event, with the onus of proof on the defendant as sufficient protection of the public interest.
I continue to hold the view that I expressed in more detail on Report, which is that it is important for there to be an authorisation procedure for acts of bribery by the state. That is essential to ensure that if acts of bribery are to be carried out by the state, it is done only when truly necessary and to ensure that officers carrying out such acts have proper protection from prosecution. Indeed, without an authorisation procedure, I would be surprised if officers would be willing to conduct acts of bribery and to take the risk of later prosecution. Amendment 3 does not require prior authorisation; it simply recognises that where the Secretary of State gives prior authorisation, a prosecution should not take place thereafter.
I add that I have put my name to Amendment 6, tabled by the noble and learned Lord, Lord Woolf. I look forward to hearing from the Minister why the Government object to the modest requirement in Amendment 6 to issue guidance simply to ensure that proper records are kept of acts of bribery by the state, or why the Government object to reporting to Parliament in that context, particularly when Amendment 6 expressly recognises the operational needs of the services. The guidance would only require records to be kept,
“so far as is practical”,
and so far as it does not impede “the proper exercise” of intelligence and Army functions. I therefore hope that, even at this late stage, there will be some movement on this important matter. I beg to move.
My Lords, I support this amendment for the reasons that the noble Lord, Lord Pannick, has given. The idea of a prior authorisation is incorporated in the statutes of the security and intelligence services. The authority or precedent of the Protection of Children Act, which the noble Lord previously quoted, refers to an amendment which was introduced into what I think is quite an elderly Act by a children’s Act in 2003. This deals only with questions of the possession of pornography and the like for the protection of children. It is a very much simpler issue than the contents of this legislation involve.
Secondly, I want to mention the very considerable intervention at the last stage by the noble and learned Lord, Lord Archer of Sandwell, who is probably more experienced than any of us in this area, certainly from the point of view of seniority. His was a very serious comment on having this simply as a defence. Therefore, in my view, what he said is best met by the kind of amendment that the noble Lord, Lord Pannick, has moved, which greatly improves the drafting of the Bill.
My Lords, speaking as the Lords member of the Intelligence and Security Committee—I have now also been nominated for the Joint National Security Committee which is to be set up between the two Houses—I am in a very privileged position, as all noble Lords here are aware. We are privy to a great deal of information regarding the operations of the security services. I can therefore speak with the knowledge but, unfortunately, without being able to go into too much detail.
When I read the proceedings in Committee, I was appalled at the suggestion that Clause 12 should be deleted. As I understand it, we are not now considering that, which I am very pleased about. However, the alternative that has been put forward by the noble Lords, Lord Pannick and Lord Goodlad, is also unacceptable for a number of reasons.
My understanding is that the first Joint Committee on this corruption Bill ruled out the question of authorisation for a number of reasons. No doubt my noble friend Lady Whitaker and others can confirm that. The most important reason for ruling it out is how impractical it would be. The volume of authorisations would be enormous. I know that some Members who have been Ministers, or Home, Defence or Foreign Secretaries, will understand the huge volume that there would be in relation to authorisation where agents, as part of their duty, have to make payments to contacts to get information which can be vital for national security, the prevention of terrorism and a whole range of other things that are in the national interest. There would be hundreds and thousands of pre-authorisations on a regular basis.
The Home Secretary and other Secretaries of State already have to deal with authorisations for interception, wire-tapping and a whole range of other things which provide an enormous burden on them. This would be an added burden that is quite unnecessary and intrusive. It is being suggested by lawyers. I think that everyone who has spoken for it, both in Committee and outside it, have been lawyers. Lawyers are generally like MPs and other politicians. When I was an MP, I found that people like you individually but they are not very fond of you collectively. In my constituency I had a lot of support, but collectively we were not very popular. I like lawyers as individuals. I like no one better than the noble and learned Lord, Lord Mackay, who I have known for many years. However, I get a bit worried when they gather together as a herd and push something. The wisdom of this amendment must be questioned—I hope that the House will question it—as it is an unfair, undue and, above all, unnecessary burden to put on Secretaries of State when the system has been operating quite properly and effectively up until now.
I fully respect my noble and learned friend, who served on the Intelligence and Security Committee with great distinction for a long period. However, I understand that my colleagues on the present committee, who come from all parties, feel the same as I do.
My Lords, I support the noble Lord, Lord Pannick, in his exposition of the reasons why the amendment in our names should commend itself to the House. I want to make three brief points. First, I express the gratitude of members of your Lordships’ Select Committee on the Constitution to the noble Lord, Lord Bach, and his ministerial colleagues for their unfailing courtesy in briefing us on the Bill’s potential consequences. Secondly, it has been said to me—my noble and learned friend Lord Mackay of Clashfern referred to this—that there is already statutory provision for prior ministerial authorisation of bribery on the part of the armed services and the security services. It has also been said that this is impractical. Both propositions cannot possibly be true. Therefore, the Minister will no doubt wish to say whether there is already statutory provision, as my noble and learned friend says, in which case it ought, clearly, to be in the Bill, or whether prior authorisation is impractical.
Many government transactions require ministerial authority. One thinks of the millions of transactions involved in social security. We are not here envisaging a very large number of transactions—quite a lot, but not an enormous number. However, the noble Lord, Lord Foulkes, with whom I agree on a surprising number of things, failed to point out that not every transaction falls within the provisions of the Bill. Class authorisations are available to the Secretary of State. It is up to him to decide. Therefore, it is not a matter of authorising hundreds of thousands of transactions; it can, if he or she so judges, be a class action.
My final point has not been previously deployed. If we are to ask people in our armed services and the security services to continue to engage in acts of bribery on behalf of the state, we must do so because there is no alternative, and we must protect them in other jurisdictions where they may well be prosecuted. We do not know, nor can we know, what other jurisdictions say or are going to say. If they are grabbed in another country and prosecuted, we must give them the protection of being able to say that they have the authorisation of the Government. Therefore, I wholeheartedly endorse what the noble Lord, Lord Pannick, has said. I very much hope that the Minister, with his unfailing courtesy, will address these points.
My Lords, as not only a non-lawyer but a non-expert, I always thought that the idea of authorisation was unwise. It is very permissive and very broad. Not only do I defer to my noble friend Lord Foulkes’s expertise on practicality; if one steps back a bit from the amendments and returns to the Bill as drafted, the result of Clause 13 as now drafted is that there will not be prosecutions by the prosecuting authority unless there is a doubt about the legality of an act by the security services or the Army. It seems to me that that is the right balance.
My Lords, I think the point that we are all trying to cover is the protection of the security services and the Armed Forces in offering favours or money in order to obtain information or whatever it is that is necessary for them to carry out their role.
Four ways have been discussed in the proceedings on the Bill. The Government’s approach is to have a statutory defence open to members of those services, which is what we see in Clause 12 or Clause 13. Another way would be prior authorisation, which the amendment argues for. A third way, which I have previously argued for, is to allow prosecutorial discretion. The director of the Serious Fraud Office or the Director of Public Prosecutions would have ample discretion to prevent prosecutions of members of their services if it was in the public interest not to prosecute them. I set out a fourth way in my amendment to Clause 1, which is simply to make it not an offence for a member of those services to do those very acts. To my mind, that is a simple, straightforward way of dealing with it, and my first and second amendments were merely redrafting the Government’s provisions to make what I regarded as a far more practical way of dealing with the object that we all have in mind.
I heard the criticism by the noble Lord, Lord Foulkes, of lawyers, and I am not surprised about that. Even he will concede that he does not know—many people do not know—precisely how the courts work in practice. You need to have considerable experience to appreciate that a reverse burden of proof is not a very satisfactory way of proceeding. Indeed, reverse burdens of proof have made a lot of people in the legal profession a lot of money over the years, not only in this country but in Strasbourg. I recall in particular the case of the Attorney-General of Hong Kong v Lee Kwong-kut, which was before the Privy Council here and was concerned with the interpretation of the bill of rights in Hong Kong. I was for one of the parties in that case, and the noble and learned Lord, Lord Woolf, gave the lead judgment, in which he pointed out that putting the legal burden on the defendant is right when, among other instances, the defence depends on facts within the defendant’s own knowledge. For example, in Clause 7, there is a statutory defence for a company to prove that it,
“had in place adequate procedures”.
Why is that satisfactory? Because it is within the company’s own knowledge as to what adequate procedures it has and what it can advance.
My criticism of Clause 13 as it now stands, and the reason why I opposed it and wish to strike it out, was that a person who is in the security services or the Armed Forces cannot possibly have access to the evidence which would be required for him to support such a defence. He would not, as I said on the last occasion, be able to walk into the offices of MI5 and demand to see the papers on which his defence would depend. If he was in the armed services, he would have great difficulty in bringing witnesses from the far reaches of the earth, where the British forces may happen to be and where the offence might have been committed, and obtaining papers the release of which would probably be resisted by the Ministry of Defence. It is impractical.
I still share the same object as others. I am disappointed that what I regarded as a redrafting has seemed to the usual channels to be in breach of the Third Reading amendments principle. There it is: the Government have tied themselves to the worst of the four courses I put forward. For that reason, we on these Benches will support pre-authorisation, which is a better solution for the particular problem.
My Lords, I hope I will be forgiven if I deal with the present amendment at the same time as Amendment 6, to which I have placed my name and which has the support of the same noble Lords as support this one. I repeat the disclosure I made on Report as to my interest.
I start by explaining why I consider that this provision and the issues we are discussing are of considerable importance. As I understand it, the defence made available in Clause 13 has the effect of the state acknowledging that there will be circumstances where members of the security services, intelligences services and Armed Forces will, in the course of their duties on behalf of the state, commit acts of bribery. This House would agree that there could be circumstances where that is right and proper but this is a significant power to give to the security and other services: the power to bribe without any form of parliamentary scrutiny or other form of prior authorisation.
We have certain experience in this field. Three Acts deal with the security services and intelligence services and work reasonably well. They require a warrant to authorise acts which would otherwise be unlawful. The systems provided for are the subject of a form of review and scrutiny by an independent person who is normally a retired senior judge. That is done, for example, in relation to telephone tapping. One can see why it is absolutely necessary, even though the situations where telephone tapping has to take place are substantial. I have difficulty understanding why, if it is practical in relation to telephone tapping or the searching of premises, something cannot also be done in this connection. It is important that, whereas the security services and intelligence services now have well-developed methods of keeping appropriate records so that they can be inspected, there is no legislation of which I am aware—I know I will be corrected if I am wrong—dealing with the Armed Forces, who are going to have this power to bribe on behalf of the state.
It is self-evident that if a new power to bribe is being given by this legislation to the Armed Forces, that could properly be said to be necessary in particular circumstances. We do not say otherwise; but it does need safeguards. One way of providing them, particularly in relation to the officers of the various services to which I have referred, was suggested by the amendment referred to by the noble Lord, Lord Pannick. It creates an improvement. However, in drafting Amendment 6, on which I am primarily addressing your Lordships, I listened to what was said by the noble Lord, Lord Bach—I endorse the remarks made by the noble Lord, Lord Goodlad, about the Minister’s courtesy—and treated it with the seriousness that it obviously deserved. I sought to find a way in which there could be a form of supervision, admittedly not ideal, that would provide protection in regard to both matters to which I have referred; first, the need for there to be a system in place to indicate the scale of bribery that is occurring, and the circumstances in which it is occurring; and secondly, to provide a flexibility that would not and could not interfere with the security services in the way indicated by the noble Lord, Lord Foulkes.
I thank the noble and learned Lord and assure him that the Intelligence and Security Committee has the power not just to examine the accounts of three services, but to ask detailed questions about them. In my experience over the past three years, the three services have given detailed information along the lines that the noble and learned Lord is suggesting. There is scrutiny by a committee of Members of both Houses of Parliament of the accounts generally and of the details of those accounts.
I am grateful to the noble Lord, Lord Foulkes, for indicating that, but my understanding of the situation is that, in regard to bribery, the act of scrutiny does not take place now. Obviously it should do. I do not know whether the noble Lord, Lord Foulkes, has knowledge of whether there is any form of scrutiny at the present time. Certainly, if there is a form of scrutiny, that is beneficial. However, the form of scrutiny that my amendment, supported by other noble Lords, recommends to the House is one that will end up in an annual report to the House. When it comes to bribery on behalf of the state, the rule of law requires no less than that there should at least be regular reports to the House about what is happening on the state's behalf in relation to bribery. Resorting to bribery is a very corrosive exercise, and if it is going to be resorted to, we need care and protection of the sort that I have indicated.
I ask the noble Lord, Lord Bach, if he does not feel that he can accept the amendment, to tell the House why it is not practical from the point of view of the services to which it refers. It requires the Secretary of State to determine what guidance should be given on the nature of the scrutiny. The Secretary of State can certainly consult and be guided by the services in drawing up the guidance. It does require, however, that the guidance should in its turn require that a record, so far as is practicable without impeding the proper exercise of the functions referred to in Clause 13, be made before the act of bribery is carried out; to state when and by whom it was carried out and to give such particulars as are sufficient to identify the act of bribery. I should like to endorse what the noble Lord, Lord Thomas of Gresford, has said about the difficulty of the person who is to be the subject of an offence. The new clause gives that person the right to make a request and to receive a copy of the record which relates to him,
“unless the Secretary of State considers that such disclosure would be contrary to the public interest, in which event such disclosure shall only take place if the trial judge directs that it should occur”,
thus taking advantage of the well known procedure of the trial judge being put in the position of having to safeguard the public interest.
I provided the noble Lord, Lord Bach, with a copy of the amendment. I am sorry that he has not had the time to consider it but I would like him to have done so because of the timescale to which we have been working. I suggest, however, that it was difficult to see why this is not a method of providing some realistic protection both to the state and to those who have to engage in the nefarious world where bribery is required to be carried out in circumstances where no offence will be committed.
My Lords, apart from the fact that the four people who have put their names to this amendment could be described in modern terms as some of the most grown up in the House, I should like to draw a small point to your Lordships’ attention. As your Lordships know, there is an expression which says you cannot buy an Afghan, you can only rent him. As far as I can gather from reading the newspapers, British and American policy is to rent Afghans on a large scale. Surely, that is the sort of policy which needs even more serious oversight and consequently I seriously support the four great grown-ups who have put their names to this amendment.
My Lords, I should like very succinctly to support these amendments and the points that have been made. I start by endorsing the point of my noble friend Lord Goodlad that the noble Lord, Lord Bach, has always been unfailingly courteous. I am sure he will give this careful consideration and we shall listen most carefully to what he has to say.
The dangers and corrosive effects of bribery have been perfectly put by the noble and learned Lord, Lord Woolf. It seems to me that there has to be some system of supervision and control by the Secretary of State and that there is an enormously strong case for the officers, whether of the Armed Forces or the security services, having the benefit of an authorisation procedure which will give them confidence that what they do will not lead to prosecution. There is a great deal of sense in the proposals that the Government should issue guidance. They will issue guidance in a great many areas, whether or not they are leaving matters to the discretion of the prosecuting authorities.
The principal argument that seems to be made against these proposals is that there are so many authorisations that it is not practicable to give them. They can, however, be broken down into classes. The fact that you have to break some down into classes and the fact that some have to done at very short notice and under some general instruction is no argument, in my view, against a system of control. The system of control may not be perfect because a perfect system would completely upset the practical needs of the services. However, that is not an argument for no system of control. Indeed, the committee on which the noble Lord, Lord Foulkes, sits—he has great knowledge in this matter—calls for and receives a great many detailed records, and I cannot believe other than that careful records are kept of bribes that are made in all these circumstances and of the amounts that are spent.
Not only do we examine the accounts very carefully and ask a lot of questions, but now, under this Government, we also provide an annual report both to the House of Commons and to this House that is debated. I introduced it in the Grand Committee in the Moses Room just a few months ago, and another one is coming up. That provides an opportunity for individual Members of the House to ask questions. On the previous occasion, no one asked about bribery.
The noble Lord’s remarks are pertinent, but I am sure he will instantly recognise that they cut both ways. If the necessary records are to some extent already being kept, it is not asking too much for the records that are required by the amendments to be kept. We as a country will hold our heads higher for being seen to have a system of control, even given what I entirely accept are the practical needs of the armed and security services to bribe, often on many occasions. Having supervision and control would raise our status, which is quite rightly very much part of the Government’s objective in the Bill. Keeping these records would not be an excessive requirement, because most of them are already kept. I very much hope that the Government will respond favourably to the thrust of the amendments and will put into place some such system, if not precisely this one.
My Lords, I have an amendment in this group that deals with the matter in the opposite way from the Government. I hope that there will be an answer to the point, to which the noble and learned Lord, Lord Mackay, has already adverted and which the noble and learned Lord, Lord Archer of Sandwell, and the noble Lord, Lord Thomas of Gresford, rehearsed on Report, about how the defence will work.
There are various methods of dealing with the problem about which everyone has been talking and obviously understands very well. The Government have decided on the method of a defence which the House has been told by people who are much more eminent in the criminal law than I am simply will not work, because the material will not be available to the defendant—or to the court, let alone to the jury—for him to establish the defence on which the Government are dependent. The noble Lord, Lord Bach, has therefore had notice of this, and I hope that he will explain exactly how it is intended to work. It will be no defence if the result is either that the case cannot be prosecuted because such sensitive material is involved that it cannot be presented to a court, or that it cannot be defended because the defendant has no access to exactly that sensitive material and therefore cannot establish the defence that he has been given by the statute. This was the concern that moved me, so I reversed the whole thing in my amendment and put the burden on the prosecution instead. I hope that the noble Lord will deal with this point.
My Lords, at this very late stage of the Bill, I hope that the House will forgive me if I intervene on behalf of my noble friend Lord Henley. Indeed, it is appropriate that the shadow spokesman on transport is standing in his place because he is stuck in a broken-down train. I will say what I believe he might have said had he been here to say it.
Amendments 3 and 6, which were tabled by the noble Lords, Lord Goodlad and Lord Pannick, and the noble and learned Lords, Lord Mackay of Clashfern and Lord Woolf, seek to qualify the provision in the Bill by inserting further requirements on the defence to the offence of bribery for the secret services and the Armed Forces. Amendment 3 amends Clause 10 in order to make it impossible to prosecute a member of the Secret Services or the Armed Forces for bribery if their conduct was specifically authorised by the Secretary of State. Amendment 6 inserts a new clause, after Clause 13, requiring the Secret Services and the Armed Forces to keep records of all acts that would constitute a bribery offence were it not for the provision in Clause 13.
We are minded to favour the approach put forward by the noble Lord, Lord Pannick, in Amendment 3. We have accepted the position that there needs to be a defence against the offence of bribery for certain classes of person. Those classes have been debated and amended, and now consist of the Armed Forces and the intelligence services. We have accepted that there are circumstances when men and women who are acting in the interests of the United Kingdom may need to perform acts which ordinarily would not be permitted.
The supporters of Amendment 3 have identified some principles which need to be upheld, notwithstanding our acceptance that some latitude needs to be shown for persons operating in the country’s best interests, in what may be very challenging circumstances. It is fair to say that bribery by the state, which is effectively what Clause 13 would allow as a defence to general offences of bribery, is so important a matter of public interest that the Secretary of State, as the Minister responsible—and directly answerable to Parliament for his actions—must be involved in its prior authorisation.
On Report, my noble and learned friend, Lord Mackay of Clashfern, made the powerful argument:
“The rule of law suggests that the Government should obey the law like everyone else”.—[Official Report, 2/2/10; col. 162.]
Any derogation from this principle should need explicit authorisation.
Amendment 3 requires that the Secretary of State must consider what he is prepared to authorise. Ahead of any use of the state’s powers to commit bribery with impunity, the Minister who is answerable to Parliament must give thought to what those powers will be used for. The amendment will require the active participation of the correct authority, and I can see much constitutional merit in that argument.
The Government have told us before that they want safeguards in place so that officers and agents of the state are not left in a position where they do not know whether or not their actions amount to criminal conduct. We agree that Amendment 3 will do nothing to weaken the certainty given to members of the Armed Forces and intelligence agencies. Rather, we believe that the certainty that they were acting correctly would be strengthened by subjecting their possible actions to prior authorisation.
We are also not particularly swayed by the argument against Amendment 3 made by the noble Lord, Lord Foulkes of Cumnock, and the noble Baroness, Lady Whitaker, that a system of prior authorisation would be too cumbersome. The Government have already laid their own amendments to limit the groups of people to whom Clause 13 would apply. From our reading of Amendment 3, there is nothing which would prevent a class of acts, operations or persons being granted prior authorisation.
As the thoughtful speeches made by noble Lords today have shown, this is not an easy issue, and there are powerful arguments to be mustered on either side. Perhaps it is even fair to say that there are more than two sides to this argument. However, having listened carefully to what noble Lords have said, we are persuaded that the course laid out by the noble Lord, Lord Pannick, and supported by the noble and learned Lord, Lord Woolf, my noble friend Lord Goodlad and my noble and learned friend, Lord Mackay of Clashfern, is the most appropriate to follow. We will therefore give Amendment 3 our support in the Content Lobby if noble Lords are minded to test the opinion of the House.
My Lords, I thank all noble Lords who have spoken in this debate. I also thank them personally for their very kind remarks and say what a pleasure it is to be across the Dispatch Box from the noble Baroness, Lady Hanham. It is a long time indeed since we last faced each other across the Dispatch Box, and I will have something to say in a moment about the change of view of the Official Opposition. That does not take away from how pleased I am to be debating with her again.
With these amendments, we return to the issue of prior ministerial authorisation of conduct by the intelligence services or Armed Forces that would constitute bribery under the Bill. At this stage of the Bill—I remind noble Lords that this is Third Reading—it is probably not helpful to dwell too much on the specifics of each of these amendments, but instead I shall address my remarks to the general approach that they seek to adopt in place of, or in addition to, what is currently in Clause 13. However, later on, I shall make a few observations on the details of the amendments. I also think it is incumbent on me to answer the points made by the noble Lord, Lord Thomas of Gresford. For the life of me, at first blush I cannot see why, if other amendments are acceptable at Third Reading, his is not, and vice versa.
My Lords, I do not think that the noble Lord is rephrasing at all. It is doubtful whether either set of amendments is fully in line with the guidelines set out in our rules. This is how things have ended up.
I readily accept that there are different approaches to this issue, as the noble Baroness said a few minutes ago. One approach would be to provide for a blanket exemption for conduct by the intelligence services and the Armed Forces. A second approach is to provide a defence, so that a person who would otherwise be guilty of an offence under the Bill will not be guilty of an offence in the circumstances where the defence applies. After careful reflection, that is the approach that we have adopted in Clause 13. I readily accept that it is a departure from the approach in the draft Bill, but as with the Constitution Committee, particularly in regard to the Armed Forces and prior authorisation, our thinking on this has developed over time in close consultation with the intelligence agencies and the Ministry of Defence. The third approach, which is the one favoured by the members of the Constitution Committee of this House and the noble Viscount, Lord Colville, is an authorisation scheme. We also have hybrid models which seek to marry up an authorisation scheme with the defence.
I do not suggest that one or other model is clearly the right one, while other models are wrong. Of course, a case can be, and has been, made for each one. However, after careful and extremely extensive deliberation, including with the intelligence services and the Ministry of Defence, we are satisfied that the defence provided for in Clause 13 provides the right mix of transparency, accountability and operational practicality.
It is incumbent on me to explain why we do not agree with the noble Lord, Lord Thomas of Gresford, that it would be impossible for a defendant to be able to run a defence fairly. The noble Lord argues that the defence is not an appropriate model for dealing with this issue on the basis that it would not be possible in practice for a person to establish the defence. He has also suggested that the operation of such a defence would create too many difficulties in practice. We do not agree. First, these arguments do not recognise the reality that cases which genuinely fall within the scope of the defence in the Bill are most unlikely to come before the courts at all. Where any case came to the attention of the police, they would, of course, be provided by the agency concerned with any material relevant to their investigation. That may well result in the police not taking the investigation any further forward on the basis that the case plainly falls within the terms of the defence. Where a case does reach the Crown Prosecution Service, it would have available the relevant material and would take it fully into account in deciding whether to bring a prosecution. A prosecution will not be brought where it is clear that the defence applies, as there would be no realistic prospect of conviction. The evidential test in the Code for Crown Prosecutors would not be met in such a case.
What of the situation where a case is brought to court and a person wishes to rely on the defence? In our view, the suggestion that it would be impossible for a person in such a case to establish the defence is wrong. There is no legal or practical reason preventing a defence being established. The criminal courts are well used to dealing with cases where sensitive information is involved. All the usual criminal procedures will apply. The defendant would, no doubt, seek disclosure of any relevant material held by others that he believed supported his case.
I am not sure I can give the noble Lord an example, but I do not think that the fact I cannot implies that it would be impossible to run a defence adequately in that case.
Independently of this, the disclosure duties imposed by the Criminal Procedure and Investigations Act 1996 mean that the agency involved would identify any material held by it that might be potentially available for disclosure, applying that Act and the codes made under it. Any material undermining the prosecution case or supporting the defence case would need to be disclosed in the usual way. As far as public interest immunity is concerned, there is the possibility in cases of this kind that an application might be made to the trial judge that certain information should not be disclosed on the grounds of public interest immunity. However, an application would not, in reality, be made in respect of material essential to the defence that is being relied upon by the accused. Indeed, a judge would not allow an application in respect of such material. If the material were essential, but too sensitive to be disclosed, the prosecution would choose not to proceed further in the public interest.
Therefore, there cannot be any question that a defendant who stands trial for such an offence would not have available any material that he or she needed to deploy to establish the defence or could not have a fair trial. The defendant will, of course, be entitled to go into the witness box to put his or her case. The arguments that have been made that it would be impossible for the defendant to meet the legal burden of proof are, we think, misguided. Where extremely sensitive material is involved, it is open for the Crown to apply for all or part of the proceedings to be held in camera under the Criminal Procedure Rules. This has happened in past cases and can happen in the kinds of cases that we are discussing here, if necessary, and I hardly need tell the House that the court can make reporting restriction orders as appropriate.
Noble Lords should be under no illusion. These kinds of situations arise from time to time, and the criminal courts find ways of dealing with them fairly. If the courts were not able to deal with sensitive criminal cases where defences are an issue, one might ask how it has ever been possible to convict anyone under official secrets legislation. We therefore disagree with the noble Lord when he says that a defence could not be run.
However, as it is not, for one reason or another, the noble Lord’s amendment that is before the House this afternoon, let me turn to the amendments that are and deal first with transparency. I apologise that this reply is quite lengthy, but the importance of this matter demands that the Government put out their case as best they can. The Bill could have been silent on the whole question of whether the intelligence services and the Armed Forces have to engage in conduct that would constitute a Clause 1 or Clause 2 offence. Indeed, this is the approach adopted in many other countries. We concluded that this would have been disingenuous and, equally importantly, would not have provided the necessary legal protection and certainty for those who have to engage in such conduct on behalf of the state.
At one level, Clause 13 is arguably an authorisation scheme. In passing this Bill, Parliament would in effect be saying that we accept that there will be occasions when it is necessary for the proper operation of the intelligences services and the Armed Forces when engaged on active service to undertake conduct that would amount to bribery. The services and Armed Forces would need their own internal controls—I will come on to this—but Parliament, not Ministers, will in practice have authorised such conduct by this clause when, and only when, it can meet the test of necessity.
That test of necessity is an important one. We are not giving the intelligence services or the Armed Forces a blank cheque. The person offering the bribe will have to be satisfied that this test is met. One of the difficulties that we have with the amendment of the noble Viscount, Lord Colville, is that it omits the necessity test and thereby reduces the threshold for an act of bribery in the exercise of the functions of the intelligence services or a member of the Armed Forces.
Given that we are dealing here with the intelligence services and the Armed Forces engaged on active service, there must be significant limits on transparency. It is long-established practice that Ministers do not comment on operational aspects of the work of the intelligence agencies. Similar considerations apply to operations by our Armed Forces. The reason for that is obvious: to do so could significantly undermine their operational capability and put lives at risk. I will come on to other aspects of Amendment 6 in due course, but I cannot accept the proposition that an annual report which goes into detail about the operation of the guidance should be laid before Parliament.
Turning to the question of accountability, I mentioned on Report the difficulties that we have with either a case-specific or class-based ministerial authorisation scheme. The former would in our view be unmanageable and would not confer the necessary operational flexibility. I am grateful for the support that that proposition has had this afternoon from my noble friend Lord Foulkes, with his experience.
One only has to consider the dynamics of military operations in Afghanistan to recognise the impracticability of a Minister sitting in London having to approve in advance each act of bribery. I recognise from the discussions I have had with a number of noble Lords, and from the debate this afternoon, that there is a general acknowledgment of the difficulties with a case-specific authorisation. I welcome that. As to a broad class-based authorisation, we have serious doubts about whether it would achieve significant added benefits in terms of accountability beyond that already achieved by Clause 13(1) and the other mechanisms that I am about to describe.
I am grateful to the noble Lord, Lord Pannick, and other noble Lords who have signed his amendment, and to the noble Viscount, Lord Colville, who have sought with their amendments to find a middle way. None the less, both still have an authorisation scheme at their heart and, in the case of Amendment 3, the reference to conduct being “specifically authorised” suggests that they have in mind a case-specific authorisation or at least something very close to that. But it is not clear what type of authorisation is intended.
Amendment 6, in the name of the noble and learned Lord, Lord Woolf—again, I am very grateful for what he has said—seeks to address the accountability question from a different angle and to put in place internal accountability arrangements to be set out in mandatory guidance issued by the Secretary of State. I assure the House that rigorous internal and external procedures, and controls governing all aspects of the activities of the intelligence and security services, are already in place. We firmly believe that these safeguards are sufficient to guard against any misapplication of the defence under Clause 13 and that internal procedures and record-keeping are properly a matter for the intelligence services and Armed Forces, and not for statutory regulation.
I say that because all three intelligence services are statutory agencies. They conduct all their activities within a framework of legislation, which sets out their functions or purposes and the covert methods which they employ to perform these functions. There are no circumstances in which the intelligence services would make a payment or offer an inducement which might, in the absence of the defence, constitute an offence under the Bill, other than to facilitate legal activity in support of the services’ statutory functions and purposes. The operational activities of the agencies are subject to a robust system of internal checks in which the onus is on the intelligence officer involved to demonstrate the necessity and proportionality of the proposed activity.
The level of oversight required for particular types of covert activity is set out explicitly in legislation; namely the Intelligence Services Act and the Regulation of Investigatory Powers Act. All activities conducted under this legislation are subject to scrutiny by the independent Intelligence Services Commissioner and the independent Interception of Communications Commissioner. These independent commissioners must, by law, be given access to whatever documents and information they need, and report annually to the Prime Minister and to Parliament.
Furthermore, the Investigatory Powers Tribunal, an independent body made up of senior members of the legal profession or judiciary, can hear and investigate the complaint of any person who is aggrieved by anything which he believes the intelligence services or GCHQ have done in relation to him or to any property of his. If an individual thought for any reason that he had suffered a financial or other disadvantage as a result of an act of bribery committed by any of the security and intelligence agencies, that individual would have recourse to the Investigatory Powers Tribunal, which has the legal power to investigate and to order such remedial action as it sees fit.
Moreover, a record is already kept within each of the security and intelligence agencies of every payment made, by and to whom, and, in the case of a covert human intelligence source or agent, what assistance that individual has provided to the service or agency involved. Payments are subject to internal audit controls, and the intelligence and security services’ accounts are subject to audit by the National Audit Office.
Parliamentary accountability of all three intelligence services is provided by the intelligence services committee, which examines the policy, administration and expenditure of the three services. Today, we have heard from a member of that committee, my noble friend Lord Foulkes. The Defence Select Committee in the other place provides similar oversight of the work of the Armed Forces.
The Armed Forces are clearly highly disciplined to follow and maintain the rule of law. They are subject to the jurisdiction of the service police, which operate wherever the Armed Forces serve; the service prosecuting authority under the independent Director of Service Prosecutions; and the service courts, which can sit anywhere that the Armed Forces are operating.
All money spent on military operations has to be fully accounted for. It is subject to strict government accounting rules, and internal and external audit. They can be expected to operate within the confines of the defence provided under this Bill in the same way as they can be expected to obey the full panoply of the criminal legal system of law. Judicial oversight will be provided in this context by the courts in any bribery case brought to trial and the defendant will rely on the Clause 13 defence. Where it is clear that a person meets the test of necessity, the investigator or the prosecutor will surely decide not to proceed with the case because there was no realistic prospect of securing a conviction.
On the safeguards which have been referred to by my noble friend, several noble and learned Lords, including a former Lord Chief Justice, a former Attorney-General and a former Lord Chancellor, have all expressed concern about the present situation. Notwithstanding what my noble friend has cogently argued, is there not a possibility of being able to scrutinise further what has been put forward by them?
My Lords, I appreciate as much as anybody the distinction of the noble and learned Lords who have spoken in this debate, in Committee and on Report. I agree, what they have to say has to be considered extremely carefully. However, as I have said at all stages, as far as this matter is concerned, the Government’s view is that we should not change the policy that we have put into this Bill. I will come onto that in a moment when I finish.
As I was saying, in such a case, independent oversight will have been provided by the investigator or prosecutor. Where the suspect’s account was not corroborated by the intelligence services or Armed Forces, and the case was brought to trial, the judge would ensure, as judges always do, the fairness of the trial and the jury would decide whether or not to convict.
In conclusion, the Government understand and respect the arguments that have been put forward in support of these amendments. I have tried to set out why I cannot commend them to the House. We believe that the defence in Clause 13, coupled with the existing well established accountability mechanisms which ensure democratic oversight of the work of the intelligence agencies and of the Armed Forces, provides an appropriate and workable level of accountability. That lay at the heart of the Constitution Committee’s concerns. We have been listening to the debates on this clause and we brought forward a significant concession on Report which removed law enforcement agencies from the ambit of the clause, but we are clear that the defence as it is now constituted is a core part of the Bill. I would like to think I may have persuaded the House that it is necessary and already subject to appropriate safeguards and I ask noble Lords with amendments in this group to withdraw them. If they are not minded to do so, I invite the House to reject them. If your Lordships see fit to pass these amendments, the Government will have to think very seriously about whether this Bill should be pursued. I do not say this as a threat. I am repeating in other words what I have said on a number of occasions. I cannot emphasise enough the importance Her Majesty’s Government attach to Clause 13 in its current form.
Does the Minister feel able to address, even briefly, an argument that was advanced by the chairman of the Constitution Committee, the noble Lord, Lord Goodlad, about the importance of prior authorisation in the event of individuals being subjected to jurisdictions overseas where the panoply of defences and arguments would not apply? Can he say—although he clearly has not followed what I have said—what he thinks is the virtue or otherwise of the arguments proposed by the noble Lord, Lord Goodlad, about the possibility of a case arising against a member of the services in other jurisdictions?
What we are taking about in this Bill is a defence of bribery that could be tried only in United Kingdom courts. It could be as a result of activities by an accused overseas, but anyone charged, as I understand it, would be tried in our courts under our rules with that same fairness for which our rules allow.
The noble Lord asked me that question before, and I still do not have the answer—but I suspect that there have been very few prosecutions, if any. Even after this Bill has passed, if it is passed in its present form, we do not expect to have very many cases of this kind to report. That is part of my argument. We believe that with the Clause 13 defence the vast majority of cases will not end up in court, because the member of the Armed Forces or the intelligence services who is suspected will have available the defence in Clause 13. That is something that the police and the prosecutor will know.
I just ask for the Minister’s help. Let us suppose that one is persuaded by him of the difficulties of specific authorisation in advance for the security services and Armed Forces. What I am not clear about is his fundamental objection to Amendment 1 from the noble Lord, Lord Thomas, which preserves Clause 13 but in a different form. Could he explain that to me?
With the greatest respect to the noble and learned Lord, the amendment would not preserve Clause 13, which is a defence to an offence of bribery. The offence is committed but there is a defence to it if Clause 13 is satisfied. What the noble Lord, Lord Thomas of Gresford, suggests is that there be an exemption altogether to the offences of bribery set out in the Bill, so no offence would have been committed at all.
In the light of the Minister’s remark that, if the House does not agree with the Government’s proposals, the Government may bring forward no other proposals, I suggest that would be a dereliction of duty on the Government’s behalf. It may be necessary to use these powers and, if is necessary to use them, protection must be given to those who use them. The essence of his argument against prior authorisation is impracticability. Let us suppose that the power to tap telephones and open letters did not exist today and someone suggested that it should be given to the Government in the same way as he recommends a power should be given for bribery. It would have no chance of passing whatever, because the principle has been established that, when you ask a citizen of this country to perform an illegal act, it requires the prior authorisation of the Home Secretary, the Foreign Secretary or the Secretary of State for Defence. In the case of defence, it would be practicable; if the proposal emerged from the field of war, it could be sent immediately to the Secretary of State—there would be a secure line to his office, and he could decide whether it should be approved. It is practicable, and the legal advice that we have had today from the distinguished legal luminaries in this House should be listened to.
I accept the noble Lord’s great experience on this point, but I am advised that with regard to offences of the kind that we are discussing, a case-specific approach would be completely impracticable. For example, for members of the Army in Afghanistan who have to take decisions quickly, out of the blue and without expecting to, in dangerous situations, there would be absolutely no way in which such prior authorisations could be given by a Secretary of State for Defence in London. That would also apply to those in the security services, who also have to take decisions of this kind sometimes. I hoped it was generally agreed that the case-specific authorisations were absurd.
I thank the Minister for his careful and courteous consideration of this issue at all stages of the Bill.
As I understand the Minister, the essence of the Government’s objection to Amendment 3 is that it would make prior authorisation impracticable. However, the whole point of Amendment 3 is that it allows the Secretary of State to authorise; it does not require him to authorise in any circumstances where he considers it impracticable. It would not prevent acts of bribery on behalf of the state going forward in such circumstances. In any event, each act of interception has to be authorised by the Secretary of State. It is very difficult to understand why a different approach should be taken in this context.
With the greatest respect, the Minister simply has not answered the concern expressed by a number of noble Lords in this debate. Clause 13 is defective, because it contains no procedure whatever for consideration by the Minister who is answerable to Parliament prior to acts of bribery being carried out by the state. This is a matter of enormous public importance. It purports to protect the public interest only after the event by a criminal prosecution—a cumbersome procedure, which as the noble Lord, Lord Thomas of Gresford, has explained, is also unfair, because it places the burden of proof on the defendant, who will not have access to the necessary information. It gives inadequate prior guidance to those individuals who will be carrying out the acts of bribery on behalf of the state.
I say to the noble Lord, Lord Foulkes, that nothing in the valuable work of the Intelligence and Security Committee can rectify these defects in Clause 13. In the light of the support given in the House today, I wish to test the opinion of the House.
Clause 13 : Defence for certain bribery offences: legitimate purposes
Amendments 4 and 5 not moved.
Amendment 6 not moved.
Bill passed and sent to the Commons.