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Claire Ward: They are not something we can write into the Bill. No amendment of that nature has been tabled by the hon. Gentleman or his colleagues. However, those are issues that the court will consider when taking account of the seriousness of the offence and deciding what is reasonable.
Mr. Djanogly: My hon. Friend the Member for Henley has just made an important point, as he did when he said that this proposal has to be put in the context of what other countries do. The Under-Secretary says that the matter should be left to our courts, but the fines imposed by American courts are huge compared with those set by this country’s judges and courts. There has to be some international balancing, so I am not sure whether she can say that the matter should be left to our courts.
Claire Ward: I think that it should be left to the courts. The Criminal Justice Act 2003 sets out the issues a court must consider when sentencing. The hon. Gentleman has referred throughout our debates to what the Americans do and the practice in other parts of the world, but I want to make it absolutely clear that we are setting a high standard with the Bribery Bill. It is a gold standard, and the Bill is recognised by the OECD as being of a higher standard. The fact that other countries do something different or less acceptable—perhaps by allowing facilitation payments—does not mean that we endorse them. We are setting a higher standard, and we think that the rest of the world will in due course follow the higher standards that this country is setting to ensure that we stamp out bribery and corruption.
Mr. Djanogly: The Under-Secretary has entirely missed the point that my hon. Friends the Members for Rugby and Kenilworth and for Henley and I are making. We are saying that in jurisdictions such as the United States, the penalties are much more stringent than those in this country. The Under-Secretary has tried to turn that on its head by claiming that penalties are tougher here, but that is not the case. Other parts of the world are more stringent, and my hon. Friends and I are asking how we can leave it to the courts to make the assessment when the issue needs to be looked at internationally.
Claire Ward: Because when our courts are sentencing, they do not think, “What do the Americans do?” They look at guidelines, legislation and what is expected in this country. We are setting a high standard by stating that the fine can be unlimited, and its level will be appropriate to the circumstances of the case.
Mr. Djanogly: Does not the Under-Secretary appreciate that to deal with international bribery, when the crime is unlikely to take place in this country, we have to look at the issue on an international basis?
Claire Ward: The hon. Gentleman cannot make comparisons between the American system and ours.
Mr. Djanogly: Why not?
Claire Ward: Because the cases that go before the American courts are of a different nature from those that go before ours. They are different because the American system has a body that exempts certain types of cases from ever reaching the courts and the Americans have a different system of plea bargaining.
Mr. Djanogly: The Under-Secretary again totally misrepresents the facts. We have only ever had two prosecutions for overseas bribery in this country; America had 40 last year.
Claire Ward: Which is the very reason why—I am sorry, Sir Nicholas, that we are straying slightly away from the clause—we are introducing the clause 6 offence. We want to make it easier to deal with cases involving the bribery of a foreign public official, instead of relying on existing legislation, which has not been as effective as we would have liked. That is the precise reason why we want the clause 6 offence. The hon. Gentleman is not really making the point that he thinks he is making.
John Howell rose—
Claire Ward: I shall give way one more time before dealing with the matter.
John Howell: I thank the Under-Secretary for giving way again; she is being very generous with her time. Are there not two issues involved? Once the Bill is passed, the courts will deal with these matters under UK law according to its provisions. However, the Bill derives a lot of its impetus from the OECD and an international arrangement. I find dealing with the OECD conventions difficult, although I have had some experience of doing so. However, that international dimension needs to be taken into account when framing the Bill in the first place.
Claire Ward: It would be fair to say that in comparison with other OECD countries, we have dramatically increased the number of live criminal investigations over the past two years. As a result of dedicated police resources, we now have more than 20 live cases. Our foreign bribery investigations have resulted in two non-criminal fines, two criminal convictions and an ongoing prosecution, which puts the UK ahead of the OECD trend on legal proceedings. We already have quite a good reputation, and we are looking to enhance our reputation as a result of what we will be capable of under the Bill.
The hon. Gentleman refers to the international context. We are trying to raise the threshold of what is acceptable behaviour by companies—domestically or abroad—to prevent bribery from taking place. Our requirements will be at a higher level than those of many other OECD countries, so it would not be appropriate to make direct comparisons with them. We think that we will be the leaders as a result of the Bill, not the followers of the rest of the OECD countries.
Let me deal with other issues that hon. Members have raised. The clause provides for lower maximum penalties to apply following summary conviction in a magistrates court. In such cases, the maximum sentence for clause 1, 2 and 6 offences will be a 12-month sentence and/or a £5,000 fine, or £1,000 in Scotland. The maximum jail term will increase from six months in England and Wales once the custody-plus provisions of the Criminal Justice Act 2003 are brought into force.
The hon. Member for Huntingdon asked about the article 45 directive. We are aware that that is a serious issue and that companies are keen to know what will happen. We are working on this complex issue in relation to clause 7, and we hope to be able to reach a view on it shortly. However, I can assure hon. Members that the Government’s position will be clear before any of the offences are brought into force.
Mr. Djanogly: The Under-Secretary gives the same response that the Secretary of State gave on Second Reading. Are we to infer that there has been no change in position and no further contact since Second Reading? Given that the Bill is going through Parliament, one would have thought that that would have been a priority for the Government, so will the Under-Secretary tell us what has happened since Second Reading?
Claire Ward: The hon. Gentleman is wrong to suggest that there has been no action since Second Reading. The matter is under detailed consideration, but it involves complex issues surrounding the possibility of companies being debarred permanently as a result of the implementation of article 45 with regard to clause 7 offences. That is why we are giving the matter serious consideration, and we will come to a view on it as soon as we can.
Mr. Heald: The hon. Lady says that discussions are continuing. Are they internal discussions in government, or are they being held with the European Commission or other countries?
10.15 am
Claire Ward: The discussions are ongoing and take account of the views of other Government Departments. There are also different views in Europe about how article 45 is applied, so it is important that we get the decision right.
I will now deal with the financial effects of the Bill. I draw hon. Members’ attention to the explanatory notes, which state that the Bill’s provisions
“would result in a net annual increase in costs for the criminal justice system of £2.18m. This is based on an estimate of a small number of additional prosecutions a year arising from the introduction of the new offence relating to commercial organisations.”
I trust that I have dealt with the main issues raised during the debate.
Question put and agreed to.
Clause 11 accordingly ordered to stand part of the Bill.
Clause 12 ordered to stand part of the Bill.

Clause 13

Defence for certain bribery offences: legitimate purposes
David Howarth: I beg to move amendment 23, in clause 13, page 9, line 2, at beginning insert ‘Subject to subsection (1A),’.
The Chair: With this it will be convenient to discuss the following: amendment 20, in clause 13, page 9, line 4, leave out ‘any function of’ and insert ‘functions relating to national security by’.
This narrows the circumstances in which the security services can legitimately pay bribes to those in which national security is engaged.
Amendment 24, in clause 13, page 9, line 7, at end insert—
‘(1A) But the defence shall not be available if the person’s conduct was necessary only for the exercise of functions specified under—
(a) section 1(3) of the Security Service Act 1989;
(b) section 1(2)(b) of the Intelligence Services Act 1994;
(c) section 3(2)(b) of the Intelligence Services Act 1994.’.
This rules out the defence in cases where only functions relating to safeguarding the national economic interest are engaged. The defence would still be available in cases involving national security or the prevention and detection of serious crime.
The lead amendment has been tabled by the distinguished lawyer, the hon. Member for Cambridge.
David Howarth: Thank you for the introduction, Sir Nicholas; I am not sure that I deserve it.
We started debating the clause during our consideration of clause 10, so I shall not spend a great deal of time repeating what was said then and will just set out the problem. Clause 13 creates a statutory defence for the intelligence services and the armed forces when, in the course of their functions, it is necessary for them to violate either clause 1 or clause 2—in other words, to give a bribe or to receive a bribe. Interestingly, as the Under-Secretary said in our debate on clause 10, clause 13 does not exempt the intelligence services or the armed forces from clause 6, which deals with the offence of bribing a foreign official. When there is an overlap, and both a clause 1 crime and a clause 6 crime have been committed, the clause 6 rule takes precedence, so the extent of clause 13 is limited to private sector bribery by the British intelligence services or the British armed forces.
My basic stance is that the clause should not be in the Bill, which we shall discuss during the stand part debate. However, I am open to persuasion that it is possible to narrow the scope of the defence to make it more satisfactory. Three groups of amendments have been tabled to achieve that, the first of which is about the intelligence services. The defence relates to the functions of the intelligence services, but the provision dealing with them shows that they have three functions. One is in regard to national security, which would be perfectly relevant to clause 13 if it were to be kept in the Bill. The second function relates to the national economic interest, and the third is concerned with the detection of crime.
Amendments 23, 24 and 20 focus on the national economic interest. It is not legitimate for that function to attract the same protection as national security. The problem is not theoretical. The Committee will recall the al-Yamamah case, when the director of the Serious Fraud Office called off the investigation in controversial circumstances. When the papers came out from the court cases surrounding that issue, it became clear that the Prime Minister of the day, Mr. Blair, was originally most concerned about national economic issues, such as the economic benefit to be gained from selling more fighter aircraft to Saudi Arabia. He had to be told, in quite straightforward terms, by the then Attorney-General, Lord Goldsmith, that such considerations were not appropriate under international law, because the OECD convention on bribery rules out the use of economic considerations when deciding whether a prosecution should be brought, or their use as part of the national regime controlling corruption.
Given that exchange between the Attorney-General and Prime Minister of the time, it is clear that if the Bill allows national economic considerations to be a defence in any way, even under the limited circumstances of the clause, we will be in violation of our international obligations under the OECD convention. Apart from that, it would be wrong for such a defence to apply to the non-national security functions of the intelligence services.
The amendments attempt to deal with the issue in two ways. One approach, in amendment 20, is to say that the defence applies if national security reasons are engaged. There might be additional reasons for which the actions of the intelligence services were engaged, but they would have to include national security. The approach in amendments 23 and 24 goes one step further and is more in line with our international obligations. The amendments would effectively rule out cases in which national economic considerations were involved. This serious issue involves our international obligations, so I will be interested to hear what the Government envisage as the way forward.
Mr. Djanogly rose—
The Chair: Mr. Djanogly, you have about one and a half minutes to speak before we adjourn.
Mr. Djanogly: Thank you, Sir Nicholas.
Generally, we are more concerned that the question of authorisation is dealt with, rather than the amendments, which would restrict the scope of the circumstances in which the security services could pay bribes to cases involving national security or the prevention and detection of serious crime. It is hard to foresee the circumstances in which such cases would arise, but I understand how frustrating it would be if the security services did not have such powers when they were needed, even if an appropriate authorisation process was available.
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