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Mr. Syms: Clearly, if troops are on active service somewhere and a bribe or a facilitation payment or whatever was needed, the money would have to come from somewhere. Unless our troops are extremely well paid, someone would have to authorise the money, the goods, the food or whatever was used. It is highly unlikely that a captain, a major or a sergeant would have sufficient funds to go round bribing people on behalf of Her Majesty’s Government. Authorisation would have to be given at some point.
Claire Ward: I think the hon. Gentleman misunderstands the concept of authorisation in relation to the security services. He is right in a sense, that there would need to be procedures in place for such an activity under the amendments that we made to clause 10 in relation to the use of the defence. The Secretary of State will need to be of the view that those procedures are satisfactory. But that is quite different from an authorisation scheme and from the authorisations that were included in the original clause as it came from the other place. Of course, people who serve this country—whether in the armed forces, on active duty or in our intelligence services—protect us from real threats to our society and to our well-being. They should not be exposed to the risk of prosecution when it is evident that their conduct is legitimate. To do so would have significant operational implication for both the intelligence services and our brave armed forces in the sort of circumstances described by the hon. Member for Poole; for example, those on active duty in Afghanistan.
I put it to the Committee that we have made significant improvements to the clause as a result of extensive debates both here and the other place. The defence now provides a secure legal footing for the activities of the services concerned, while ensuring an appropriate level of oversight and accountability. On that basis, I invite the Committee to agree that clause 13 should stand part of the Bill.
Question put, That the clause, as amended, stand part of the Bill.
The Committee divided: Ayes 13, Noes 1.
Division No. 1]
AYES
Bain, Mr. William
Djanogly, Mr. Jonathan
Heald, Mr. Oliver
Hill, rh Keith
Howell, John
Jones, Helen
Kilfoyle, Mr. Peter
Levitt, Tom
Syms, Mr. Robert
Ussher, Kitty
Ward, Claire
Wills, rh Mr. Michael
Wright, Jeremy
NOES
Howarth, David
Question accordingly agreed to.
Clause 13, as amended, ordered to stand part of the Bill.

Clause 14

Offences under sections 1, 2 and 6 by bodies corporate etc.
Question proposed, That the clause stand part of the Bill.
Mr. Djanogly: The clause ties in senior officers of companies—or perhaps I should say bodies corporate—to clause 1, 2 or 6 offences. It works by saying that if a senior officer commits an offence, the underlying offence is
“proved to have been committed with the consent or connivance”
of that senior officer. We have been asked whether the Under-Secretary could explain, or rather clarify, the meaning of connivance in that context. It is, of course, an extremely important matter that—
Claire Ward: Who has asked the hon. Gentleman to seek clarity on the matter?
Mr. Djanogly: Let me change that to say that I am asking. It is an extremely important matter that an employee or officer could also be prosecuted for a clause 1, 2 or 6 offence with very serious consequences. To clarify those circumstances is also, therefore, very important.
Mr. Syms: Just to follow up on that point very briefly, clearly if a senior officer has given consent, that is something that would happen in advance of an offence occurring. If, on the other hand, a senior officer finds out that an employee has done something and covered it up, then, to an extent, that might be connivance. Presumably, both would be covered by that particular aspect. I would be grateful for further clarification from the Under-Secretary.
2 pm
Claire Ward: Clause 14 recognises that it is individuals who undertake bribery, even where a body corporate is held responsible. The clause provides that where a body corporate or a Scottish partnership has been found guilty of bribery under the general or foreign public official offences, a director, partner or similar senior officer of the body or partnership is guilty of the same offence if he or she has consented to or connived at the commission of the offence. It does not apply to the failure by commercial organisations to prevent bribery offence in clause 7.
The consent or connivance provision follows the model of section 12 of the Fraud Act 2006 and, previously, section 18 of the Theft Act 1968, among others—it is a relatively common provision. I am sure the hon. Member for Huntingdon, as a solicitor, will be well versed in such things. The Law Commission report, paragraph 6.132, noted that
“there is a compelling case to extend the ‘consent and connivance’ regime applicable in fraud cases to bribery offenses”.
The clause does not create a second offence of consent or connivance; rather, the body corporate and senior officer are guilty of the main bribery offence. If that is not a sufficient explanation for the hon. Gentleman on the details of connivance as set out in other legislation, I am more than happy to write to him.
Mr. Djanogly: That is quite sufficient; I thank the Under-Secretary for the information.
Question put and agreed to.
Clause 14 accordingly ordered to stand part of the Bill.

Clause 15

Offences under section 7 by partnerships
Question proposed, That the clause stand part of the Bill.
Mr. Djanogly: The clause deals with offences under clause 7 by partnerships and states that the proceedings must be brought in the name of the partnership. However, subsection (3) states that any fine imposed on the partnership is to be paid out of the partnership assets. I have two questions. First, why is the Bill going away from the standard position that partners are personally responsible for the debts of the partnership? Secondly, if a clause 7 offence were prosecuted, could the partners be pulled into the prosecution through clause 14? If they cannot be pulled in by that means, why is it fair that individuals doing business as a company can be personally prosecuted under clause 14, but individuals doing business as a partnership cannot?
Mr. Djanogly: Could the Minister address my second question? I shall repeat it for her benefit. If a clause 7 offence were prosecuted, could the partners be pulled into the prosecution through clause 14? If they cannot be pulled in by that means, why is it fair that individuals doing business acting within a company can be personally prosecuted under clause 14, but individuals doing business as a partnership cannot?
Claire Ward: My understanding is that they cannot.
Mr. Djanogly: Who cannot? Why?
Claire Ward: My understanding is that partners cannot be prosecuted on that basis.
Mr. Djanogly: The fact that they cannot be prosecuted is in the Bill. My question is, why is there a seeming differentiation between a partnership and a company?
Claire Ward: The hon. Gentleman is seeking, I think, clarification on whether partners can be brought in under clause 14.
Mr. Djanogly: Correct.
Claire Ward: My understanding is that they cannot. However, should any further clarification be required, I am happy to write to the hon. Gentleman.
Mr. Djanogly: May I just clarify the point? I could start a business by setting up either a company or a partnership. The Under-Secretary’s answer suggests that it would make sense to set up a business under a partnership, because I would not then be liable as an individual under the terms of the legislation. Were I to set up a business by using a company, however, I could be personally liable under the provisions of clause 14. That is the point I am trying to make. It seems to be an anomaly and it needs clarification.
Claire Ward: I am not in a position to provide any further clarification at this stage. Should any further information be required, I am happy to write to the hon. Gentleman.
Mr. Heald: On the partnership assets in clause 15(3), a call can normally be made on the partners if the partnership owes a debt. Subsection (3), however, seems to suggest instead that the assets of the partnership as constituted at the time of conviction would be subject to the fine. If so, is there not a danger of avoidance measures being taken?
Mr. Djanogly: My hon. Friend makes an important point. I think the Under-Secretary said in her opening remarks that the standard position is that partners cannot be held personally liable, and she cited legislation in which that is the case. I agree with my hon. Friend, however, that the starting position in a partnership is that partners are personally liable. The proposal is unusual, so why are we going down that route?
Mr. Heald: It would be worth the Under-Secretary addressing the question of whether the provision runs any risks of avoidance. If it does not, that would be all to the good.
Claire Ward: We are discussing the difference between debts and criminal liability in relation to a partnership. Regarding subsection (3), any fine should be paid out of the partnership assets, and that is not unusual in other legislation. I am happy to reflect on the issues raised by the hon. Members for North-East Hertfordshire and for Huntingdon, and to write to them in due course.
Question put and agreed to.
Clause 15 accordingly ordered to stand part of the Bill.
Clauses 16 and 17 ordered to stand part of the Bill.
Schedules 1 and 2 agreed to.
Clause 18 ordered to stand part of the Bill.

Clause 19

Commencement and transitional provision etc.
Question proposed, That the clause stand part of the Bill.
Mr. Djanogly: Will the Under-Secretary explain the discussions that she or her Department has had with Scottish Ministers on how the Bill will be applied in Scotland?
Claire Ward: The reform of the law on bribery and the commencement is a devolved matter in Scotland. Accordingly, the extension of the Bill to that jurisdiction is subject to the Scottish Parliament passing the necessary legislative consent motion. I understand that the Scottish Justice Minister tabled such a motion on 11 February, and it has subsequently been passed.
Clause 19 covers commencement and the Bill’s substantive provisions. The new criminal offences will be brought into force by a commencement order by the Secretary of State. As I have indicated, we will not commence the new offence of the failure on the part of a commercial organisation to prevent bribery until we have published the relevant guidance for commercial organisations, as required by clause 9. Such guidance will be available well in advance of the legislation coming into force—an assurance that I gave to hon. Members and the Committee earlier this week. That being the case, we do not envisage bringing that offence into force before 1 October 2010 at the earliest.
Question put and agreed to.
Clause 19 accordingly ordered to stand part of the Bill.
Clause 20 ordered to stand part of the Bill.
 
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