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Bribery Bill [HL]

Volume 718: debated on Thursday 8 April 2010

Commons Amendments

Motion on Amendment 1

Moved by

1: Page 6, line 29, leave out subsections (3) to (5) and insert-

“(3) No proceedings for an offence under this Act may be instituted in England and Wales or Northern Ireland by a person-

(a) who is acting-(i) under the direction or instruction of the Director of Public Prosecutions, the Director of the Serious Fraud Office or the Director of Revenue and Customs Prosecutions, or(ii) on behalf of such a Director, or(b) to whom such a function has been assigned by such a Director,except with the consent of the Director concerned to the institution of the proceedings.

(4) The Director of Public Prosecutions, the Director of the Serious Fraud Office and the Director of Revenue and Customs Prosecutions must exercise personally any function under subsection (1), (2) or (3) of giving consent.

(5) The only exception is if-

(a) the Director concerned is unavailable, and(b) there is another person who is designated in writing by the Director acting personally as the person who is authorised to exercise any such function when the Director is unavailable.(6) In that case, the other person may exercise the function but must do so personally.

(7) Subsections (4) to (6) apply instead of any other provisions which would otherwise have enabled any function of the Director of Public Prosecutions, the Director of the Serious Fraud Office or the Director of Revenue and Customs Prosecutions under subsection (1), (2) or (3) of giving consent to be exercised by a person other than the Director concerned.

(8) No proceedings for an offence under this Act may be instituted in Northern Ireland by virtue of section 36 of the Justice (Northern Ireland) Act 2002 (delegation of the functions of the Director of Public Prosecutions for Northern Ireland to persons other than the Deputy Director) except with the consent of the Director of Public Prosecutions for Northern Ireland to the institution of the proceedings.

(9) The Director of Public Prosecutions for Northern Ireland must exercise personally any function under subsection (2) or (8) of giving consent unless the function is exercised personally by the Deputy Director of Public Prosecutions for Northern Ireland by virtue of section 30(4) or (7) of the Act of 2002 (powers of Deputy Director to exercise functions of Director).

(10) Subsection (9) applies instead of section 36 of the Act of 2002 in relation to the functions of the Director of Public Prosecutions for Northern Ireland and the Deputy Director of Public Prosecutions for Northern Ireland under, or (as the case may be) by virtue of, subsections (2) and (8) above of giving consent.”

My Lords, during the passage of the Bribery Bill through your Lordships’ House, there was considerable debate about whether the function of consenting to a prosecution should be vested in the Attorney-General or, as Clause 10 provides, the director of the relevant prosecuting authority. The noble Lord, Lord Henley, and others argue that any changes to the Attorney’s current functions in this regard should be addressed in the round and not piecemeal, offence by offence. It was also suggested that the offences in the Bill are of such seriousness that the function of consenting to a prosecution should in any event be vested in the Attorney.

We also heard contrary arguments in favour of the consent function being vested in the director of the relevant prosecuting authority. I also pointed out in our earlier debates that the approach taken in Clause 10 had been supported by the Law Commission and the Joint Committee that considered the draft Bribery Bill. I am happy to say that the other place agreed with our approach.

However, the Government have accepted that the question of whether to consent to a prosecution for one of the new bribery offences could give rise to more difficult and sensitive considerations than is the case with other offences. In recognition of this, the other place agreed that special arrangements should apply. Amendment 1 would therefore require that the function of consenting to a prosecution be exercised personally by the director of the relevant prosecuting authority. While the normal powers to delegate the director’s functions would not apply, provision has been included for a nominated person to act in the event of the director being unavailable; for example, because he or she was out of the country or was incapacitated.

The amendment affords sufficient recognition of the sensitivities that can apply to the offences under the Bill. I commend it to the House. I beg to move.

My Lords, my colleagues in another place accepted the Government’s amendment yesterday, so I intend to keep my comments very brief. We have a satisfactory Bill. We gave a commitment some time ago that we hoped to see it on the statute book, and, on this last day, I think that we are getting very close to that point.

However, we must not be complacent about the Bill once it passes from this House and receives Royal Assent. We are creating new law to replace the antiquated collection of rules that were in place before the Bill came about, so we must take care to see that it works in practice.

The Minister will be aware that some nervousness on the part of the business community remains—not because it wants to continue corrupt practices, of course, but because it wants to be 100 per cent sure that it is complying with the law. For that reason, I want an assurance from the Minister about the guidance. When will the Government publish that? Will he confirm that prosecutions will not commence under this Act until the Government have published clear guidance, prepared in consultation with the relevant groups?

My Lords, the amendment, as described by the Minister, represents a skilful and adroit compromise, and a balancing of matters and considerations which occupied the scrutiny committee and subsequent investigations. I welcome it.

I, too, think that the amendment is an improvement on the Bill that we sent to the House of Commons. I assume that the situation in Scotland is sufficiently dealt with by the general arrangements for administration of criminal justice in Scotland, so we do not need anything equivalent for that.

My Lords, I declare an interest in the Bill as a member—not an officer—of Transparency International UK, perhaps the leading NGO in this field. I was also a member of the Joint Committee which gave pre-legislative scrutiny to the Bill.

I warmly welcome the Bill. It is important, because we all know of the amount of damage that is done by corruption, particularly in developing countries. It is also a Bill that is seriously overdue. The last major legislation on bribery took place in 1916, and it is nearly 13 years since the process that eventually led to this Bill began. I am very glad that the Bill’s substance has been supported from the start of the pre-legislative scrutiny to today by all three main parties. Unlike most Bills dealt with as part of the wash-up, this Bill has been fully scrutinised.

Amendment 1 is acceptable in this case. However, I would be interested to know when it is likely to be possible to obtain the guidance that was added into this Bill as a result of the pressure from the Joint Committee. This Bill clarifies the meaning of bribery and extends the jurisdiction of British courts over bribery committed aboard, as well as imposing liability on companies that fail to take proper steps to guard against bribery being committed by their staff or agents. This is an excellent Bill and I am very glad that it will now receive Royal Assent.

My Lords, I, too, welcome Amendment 1. I happened to speak at a conference last week of ICC UK, which was attended by a large number of people from the defence industries and from exporters. I was struck by the concern that they have about Clauses 7 and 8, which are quite tightly drawn and which put criminal liability on a commercial organisation if a person on their behalf commits a bribery offence. In particular, they were concerned with what were adequate procedures. The guidance promised in Clause 9 is essential to assuage the fears of the business community about what amounts to adequate procedures. The clause itself strengthens the position of the directors of the various services, including the director of the Serious Fraud Office and the other prosecutorial bodies, and underlines the fact that the only way in which companies and business organisations feel that there is some protection for themselves may be prosecutorial discretion. I am sure that it will be of great comfort to those organisations to know that prosecutorial discretion will be exercised by the directors of those various prosecutorial organisations personally or by their nominated delegate. The Government are very wise to have introduced Amendment 1.

My Lords, I am very grateful to all noble Lords who have spoken on this amendment. We are grateful to the opposition parties and those on the Cross Benches for the assistance and help that they have given to take this Bill through Parliament. It is very much a consensual Bill which is not before time in modernising the law of bribery. It would not have been possible to have got a Bill like this without there being general agreement from Second Reading on—indeed, before Second Reading—for this Bill. When we have had points of difference, they have shown up in debate, as they ought to. I hope that we have found a successful resolution to them. We are coming on to another amendment in due course.

I thank the noble and learned Lord, Lord Mayhew, for his support for this amendment, as I do other noble Lords who have spoken to it. The answer to the question asked by the noble and learned Lord, Lord Mackay of Clashfern, is yes. I think that he can be content with that answer. The noble Lord, Lord Henley, and others asked about the guidance. We will publish the guidance well in advance of Clause 7 of the Bill coming into force, which goes a little way to satisfy those in the business community who are understandably wary of how the Bill will work. The noble Lord, Lord Thomas of Gresford, mentioned their concern, too.

As to when the guidance will be published, without for goodness’ sake wanting to bring the general election into this debate, I can say that this Government’s intention is that the guidance should be published before the Summer Recess. However, if there is another Administration, they must be free to have their priorities one way or another. We cannot say for sure that the guidance will be published before the Summer Recess, although I would hope that given the consensual nature of the Bill any Government would want to have the guidance published as soon as possible, because it is important to bring in the Bill as soon as possible so that it can be effectively the law of the land.

Motion on Amendment 1 agreed.

Motion on Amendments 2 to 8

Moved by

2: Page 6, line 37, leave out subsections (6) to (14)

With these amendments, we return to a thorny issue that divided us at an earlier stage—the defence in respect of conduct by the intelligence services and Armed Forces which would otherwise amount to an offence under the Bill. The House will recall that we grappled with this issue at some length during the proceedings on the Bill in January and February. That seems a little while ago now.

At Third Reading, the House passed an amendment to Clause 10 which sought to introduce a discretionary authorisation scheme in respect of conduct which would attract the Clause 13 defence. I made it clear at the time that it was not an amendment that the Government could support. We have set out two key defects with what became subsections (6) to (14) of Clause 10, as introduced in the other place. First, the provisions would enable the Secretary of State to authorise conduct which amounted to an offence under Clause 6—namely, the offence of bribing a foreign public official. This would have been at odds with the United Kingdom’s international obligations and, in particular, the OECD convention. David Howarth for the Liberal Democrats in the other place acknowledged that this was a critical defect and was reason enough on its own to remove the Lords amendment.

The second major defect from the Government’s perspective was the fact that the amendment passed by your Lordships’ House undermined the utility of the Clause 13 defence in seeking to provide legal certainty for members of the intelligence services and Armed Forces. The amendment put forward by the noble Lord, Lord Pannick, and other noble Lords and noble and learned Lords purported to be a discretionary authorisation scheme, but its effect was to cast doubt on the operation of the Clause 13 defence in any case where prior ministerial authorisation for the conduct had not been given. In addition, we had concerns about the workability of the proposed authorisation scheme, given that it required conduct to be “specifically authorised”. As I explained during our earlier debates, it is our firm view that a case-specific authorisation scheme would not provide the necessary flexibility to cater for complex and fast-moving operations in Afghanistan and elsewhere.

For those reasons the Government invited the Public Bill Committee of another place to remove these subsections of Clause 10. The Committee agreed to the government amendment without Division. However, the Government have accepted the case put forward by the Constitution Committee of this House that there needs to be a measure of ministerial oversight on the operation of the defence in Clause 13. This is the thrust of Amendments 3, 4, 6, 7 and 8.

Amendment 4 is the key amendment. It places a statutory duty on the heads of the three intelligence services and the Defence Council to put in place arrangements designed to ensure that any conduct that amounts to a relevant bribery defence is necessary for the proper exercise of any functions of the intelligence services and the Armed Forces. Such arrangements must be ones that the relevant Secretary of State considers to be satisfactory.

As Amendment 4 provides, it would be for the heads of the intelligence services and the Defence Council to determine what arrangements to put in place, subject to the requirement that the Secretary of State considers them to be satisfactory. However, the matters which these arrangements might be expected to cover include, for example, internal guidance on the offences in Clauses 1 and 2 and the scope of the Clause 13 defence, and, in addition, the taking of internal legal advice in specified circumstances. I hope that our acknowledgement that there should be a degree of ministerial oversight is accepted by the House.

Perhaps I may deal briefly with Amendment 5; and here we are grateful to the noble Lord, Lord Thomas of Gresford. In Committee, the noble Lord suggested that it would be invidious for two individuals to find themselves in the dock, one charged with an offence under Clause 1 and the other with an offence under Clause 2. The first person was a member of the intelligence services who had paid a bribe, while the second person has accepted the bribe in return for providing some information or other assistance to his co-accused. I indicated at the time that it was our policy that both individuals should be able to avail themselves of the defence. However, the noble Lord questioned whether the recipient of the bribe could meet the necessity test in Clause 13(1). On reflection, we agree that the policy intention could be better expressed. Accordingly, Amendment 5 makes it clear that if it is necessary in pursuit of a function of one of the intelligence services or Armed Forces for a bribe to be paid then it will be treated as necessary for the other person to receive it, thereby triggering the defence for the recipient of the bribe.

The Clause 13 defence is a fundamental part of the Bill. The Government accept, however, that conduct by agencies of the state that would amount to an offence under the Bill needs to be subject to appropriate ministerial oversight. The amendments made in the other place provide for this while ensuring that such oversight can be exercised proportionately without undermining the operational effectiveness of the intelligence services and Armed Forces. I therefore commend the amendments to the House and beg to move.

My Lords, before I deal with the amendments as such, I join the noble Lord, Lord Goodhart, in his comments on the previous amendment when he accepted that there has been full consideration of all matters in the Bill. This is really rather welcome when we think of what has been happening to a great many other Bills in the so-called wash-up that have not had the consideration they deserve. This Bill certainly has had that.

The second group of amendments is obviously somewhat more contentious than the first in that it removes from the Bill the amendment to Clause 10 that was voted in by your Lordships' House on Third Reading after a very thoughtful and powerfully argued debate. Sadly, due to transport difficulties, I missed that debate—my noble friend Lady Hanham spoke in my place—but I have considered very carefully what was said by various noble Lords throughout the House then and what the Government said in another place when that clause was debated in Committee there. My honourable friends in another place were not left with much time to consider the Government's proposals before being required to agree them, but we have since reflected on the arguments put forward by the noble Lord's colleague, Claire Ward, who dealt with the Bill in another place. I note that, thankfully, the Government have not simply overturned the amendment that we put in but clearly have sat and thought about the very valid criticism that it is inappropriate to allow the state to commit bribery without any real oversight or limitation.

What the Government are proposing in place of the amendments passed in this House is, therefore, obviously something a compromise. Amendment 2 takes out the specific requirement for prior consent in Clause 10, while Amendment 4, which is the key amendment, moves the focus back to the defence clause, Clause 13. That amendment places a duty on the heads of the intelligence services and the Defence Council to make arrangements that show the necessity of committing a particular act of bribery, and that act would therefore be covered by the legitimate purposes defence in Clause 13(1), thereby providing a defence to prosecution to members of the relevant services.

The arrangements that have been put in place must be satisfactory to the Secretary of State—which, as the Minister has emphasised, will be an ongoing requirement. Presumably that means that any arrangements will need to be tweaked or overhauled if the Secretary of State does not feel that the result is satisfactory. I should therefore be very grateful if the Minister would give us a flavour of what those arrangements might be. We are taking quite a lot on trust if we are to accept these amendments, and we will have to rely on the various heads of the services to draw up satisfactory arrangements. We must also rely on the Secretary of State to ensure that he is not too easily satisfied with what they put forward. I should therefore also like the noble Lord to give us an indication of just what yardstick the Secretary of State would use to gauge his satisfaction.

The proposal that the noble Lord has put forward is not perfect; it is a compromise. We accept that the Government have thought about the criticisms that were made at earlier stages of the Bill, particularly when it was in this House, and have come up with an approach that has some ministerial oversight built into it. We will not oppose the amendments—in fact we will accept them—but I think that it will be necessary to keep a very close eye on how this part of the Bill operates once it is up and running.

My Lords, I am grateful for Amendment 5, which has put into statutory form the objection that I made when the matter was before us. I am pleased to see that that is there.

My criticism of Clause 13, however, remains. I said before that it would be very difficult for a person who is a member of the intelligence services and charged with an offence to prove his defence, on the basis that he would not have access to the necessary documentation and information and, in the case of the Armed Forces, to witnesses who could assist him in proving his case. I thought, and think now, that the burden of proving that defence is impossible. But it is even more impossible with the amendments that have now been introduced, particularly Amendment 4, which states:

“The head of each intelligence service must ensure that the service has in place arrangements designed to ensure that any conduct of a member of the service which would otherwise be a relevant bribery offence is necessary”.

So the offence can arise only if the person has ignored a direction or where there is no direction from the intelligence service or the Defence Council in question. In those circumstances, one simply cannot conceive of it ever happening and consequently Clause 13, this alleged defence, is otiose. It is perhaps not surprising that it involves the security services, because it has been a feature of this Government—and here we are at their very end—to defer to them on things such as intercept evidence and on other legislation that has passed over the last 10 or 12 years. But there it is; I have made my objections. I welcome the Government’s attempt to improve upon what was in the Bill before.

My Lords, this group of amendments that the Government have put in place, in lieu of the one made by this House on Third Reading, is reasonably satisfactory. I understand the position that the noble Lord referred to if somebody has acted outwith the terms of the arrangements. If that happened, it would be very difficult for them, but so long as they are within the terms of the arrangements they are pretty well automatically covered. That is what the amendment which we put forward on Third Reading was really about; trying to ensure that the ordinary member of the security services or the Armed Forces who was involved would be able to point to some arrangement which covered him or her in relation to the allegation of bribery made against him or her.

I regard this as a satisfactory way of dealing with the matter. It is also important that these arrangements are subject to the approval of the Secretary of State; therefore, there is accountability to Parliament for the way in which this particular aspect of the security services and the Armed Forces is conducted. I shall go back for a moment to the question about guidance. The noble Lord, Lord Bach, said—I do not think that he was forecasting—that there might be a new Administration after the general election. So far as the Administration of which he is an honourable Member are concerned, they would hope to have the guidance out by the summer. That might not bind a successor, but it does bind a successor that the guidance must be published before Clause 7 comes into operation. It seems to me to be a governmental undertaking, which would be binding on a successor Administration before they brought Clauses 6 and 7 into operation.

My Lords, when introducing these amendments the Minister referred to the fact that we had grappled in Committee, and subsequently, with the difficult questions that this particular legislation throws up. To some extent, we have seen today that the grappling is not yet entirely over. I gratefully adopt what my noble and learned friend Lord Mackay of Clashfern said just now. I believe that what we have here finds a clever way round some really difficult questions. In an imperfect world, we need to have intelligence services; equally, it is very important that our intelligence services should stay within the law, as must all agencies of the state if we are to uphold the rule of law, as we must.

There has to be a measure of ministerial accountability and oversight, and that is found here. I believe that this represents a clever compromise on the part of the Government and, if I may say so, the parliamentary draftsmen. It was entirely legitimate for the Minister to say, in introducing this group of amendments on 18 March:

“The defence now provides a secure legal footing for the activities of the services concerned, while ensuring an appropriate level of oversight and accountability”.—[Official Report, Commons, 18/3/10; col. 148.]

Looking forward as we all do to the guidance that will be issued, which will be important for the reasons that have been mentioned, it is a great pleasure for me—after the rather turbulent 24 hours that the Government have sustained—to be able to congratulate them on what they have done.

My Lords, speaking briefly for myself, I agree with what has been said by the noble and learned Lords, Lord Mackay of Clashfern and Lord Mayhew.

My Lords, to follow the point made by the noble and learned Lord, Lord Mackay of Clashfern, in the earlier debate when the Minister indicated that administrative arrangements in Scotland did not require the kind of legislation for consent that we have here for England, Wales and Northern Ireland, could the Minister also clarify the position regarding the issuing of guidance in relation to Scotland?

My Lords, I am grateful again to noble Lords who have spoken, and particularly for the support for the compromise, as it is, that finds itself back with us today in Amendment 4. To have the general support of the noble and learned Lords, Lord Mackay of Clashfern and Lord Mayhew, as well as that of the noble Lord, Lord Goodhart, who are all eminent lawyers and experts in this field, is really welcoming for the Government. It makes us think that we may actually have got it about right. I am also grateful to the noble Lord, Lord Henley, for his party’s acceptance of this arrangement, and to the noble Lord, Lord Thomas of Gresford—although I know that nothing I can say will persuade him that the Clause 13-defence is the right approach to this Bill.

At the risk of repeating what I have said, we think that the DPP, when deciding whether to prosecute, will be very much affected by the existence of Clause 13. There will be very rare cases indeed where it does begin; if there is a prosecution, of course the accused has the right to a jury decision, however strong or weak the evidence may be. We will see whether the Clause 13-defence works.

The noble Lord, Lord Wallace, asked about Scotland. The answer to his question is to be found in Clause 9 —soon, I hope, to be Section 9 of the Act. Clause 9(3) says that:

“The Secretary of State must consult the Scottish Ministers before publishing anything under this section”.

Finally, the noble and learned Lord, Lord Mackay of Clashfern, said again that the important point about the guidance was not so much when it would be published—although we all hope that it will be published soon—but that any Government would be committed to the principle that guidance has to be published well before the relevant section comes into effect. We agree; if there is a change of Government, that should prevail whoever is in power.

It has just occurred to me that the noble Lord, Lord Goodhart, was saying that this Bill is different from others dealt with in the wash-up. I think that, technically speaking, this Bill is not in the wash-up, because that is where there has been some kind of setting aside of the ordinary procedures. Thankfully, this Bill has gone through every stage properly and has come just in the nick of time to Royal Assent.

As so often, the noble and learned Lord, Lord Mackay of Clashfern, has got the exact point. No, this is not part of the wash-up. Speaking personally, I am pleased about that.

Motion agreed.