Joint Committee on The Draft Corruption Bill Report

6  Clause 15: Intelligence services

140. Clauses 15 and 16 apply to the Security Service, the Secret Intelligence Service and the Government Communications Headquarters (GCHQ)—referred to collectively as "the intelligence agencies". Clause 15 effectively exempts the intelligence agencies from being charged with committing a corruption offence, provided that they are operating under the authority of an authorisation given by the Secretary of State at the time of the apparent offence. The Secretary of State may authorise the intelligence agencies to carry out an act which would otherwise constitute a corruption offence only if he or she is satisfied that the three conditions set out in sub-Clauses (4) to (6) of Clause 15 have first been met. However, even if the intelligence agencies were to act in accordance with an authorisation which the Secretary of State should not have given—because one or more of the three conditions had not, as a matter of fact, been met—it would appear that the agencies would still be exempt from being charged with a corruption offence.

141. We have heard a range of evidence as to the desirability of the current broad scope of the Clause 15 exemption. The chairpersons of the bodies responsible for monitoring the implementation of the OECD convention and the Council of Europe's criminal law convention separately told us that Clause 15 is not in compliance with the UK's obligations under either convention.[158] Professor Pieth, the chairman of the OECD Working Group on Bribery in International Business Transactions stated in oral evidence that:

"Clause 15 is being explicit and just asking for trouble. There you will be in massive trouble with the intelligence agencies. That is going to trigger off huge debates internationally …"[159]

142. Mr Drago Kos, the chairman of GRECO, the body responsible for monitoring the implementation of the Council of Europe convention, told us that:

"No international treaty would allow an exemption from the general criminalisation of corruption like the one included in [Clause 15]. Even admitting the "special" or "unusual" nature of the activities of the intelligence services and the strict conditions laid down in [Clauses 15 and 16], there is no doubt that the text of the draft is not in compliance with the Council of Europe's Criminal Law Convention on Corruption or with the OECD Convention … [Clauses 15 and 16 are] in direct opposition to international legal instruments in the field of corruption and might attract heavy and undeserved criticism towards the whole draft [Bill]. There is hardly any reasonable legal explanation for the text of [Clauses 15 and 16]".[160]

143. On the other hand, we have also heard evidence supporting the inclusion of Clause 15 in the Bill in its present form. The Intelligence and Security Committee has stated that Clauses 15 and 16 are necessary to ensure that, when the intelligence agencies conduct activities that would otherwise be illegal in the UK, they do so with the authorisation of the responsible Secretary of State.[161] The Attorney General told us that the intelligence agencies:

"… are required from time to time to act in a way which would contravene what the law is in order to protect national security and to protect the people of the country. I think it is much more desirable that that should be within a framework within which Parliament has authorised with checks and balances and set out clearly rather than leaving it to the discretion of the prosecutor at the end of the day simply to say whether it was appropriate or not".[162]

144. We consider further below the question of whether the scope of the Clause 15 exemption is such that Clause 15 is not in compliance with the UK's obligations under either convention.

Functions of the intelligence agencies

145. In order to understand the application of Clause 15, it is necessary to consider the statutory functions of the intelligence agencies, and the purposes for which those functions may be exercised. This is because Clause 15(4) requires that the act or omission that is authorised (or the operation in the course of which such acts or omissions will be done or made) must be necessary for the proper discharge of a function of the intelligence agencies.

146. The statutory functions of these agencies are set out in detail in Annex 3. In summary, on the basis of the relevant legislative provisions, it would appear that all three intelligence agencies are empowered to carry out their respective functions only:

·  in the interests of national security, or

·  in order to prevent or detect serious crime, or

·  (in the case of the Security Service) "to safeguard" the economic well-being of the UK; or (in the case of the Intelligence Service and the GCHQ) "in the interests of" the economic well-being of the UK.

Compliance with international obligations

147. Neither the OECD convention nor the Council of Europe's criminal law convention expressly provide for intelligence agencies to be exempted from the corruption offences that parties to the conventions are required to establish. On the face of it, therefore, the intelligence agencies are required to be subject to the provisions of the conventions, unless there is some basis for arguing that there is an implied exception.

148. In establishing whether there is such a basis, it is necessary to consider what the objectives of each convention are. While we do not propose here to undertake an extensive examination of the objectives of each convention, we have commented briefly on each.

149. The preamble to each convention is helpful in establishing each convention's objectives. The preamble to the OECD convention indicates that it is directed against bribery because bribery "raises serious moral and political concerns, undermines good governance and economic development and distorts international competitive conditions". The preamble to the Council of Europe's criminal law convention indicates that it is directed against corruption because "corruption threatens the rule of law, democracy and human rights, undermines good governance, fairness and social justice, distorts competition, hinders economic development and endangers the stability of democratic institutions and the moral foundations of society".

150. This suggests that the objectives of both conventions are essentially threefold:

·  to safeguard fundamental features of democratic societies, such as the rule of law and human rights, and the stability of democratic institutions

·  to promote economic development and international competition

·  to address the "immorality" of corruption.

151. Any exception implied in the conventions must be compatible with these objectives. Consequently, in order to answer the concerns raised by Mr Kos and Professor Pieth, the Government must be able to demonstrate that the exemption given to the intelligence agencies under Clause 15 does not conflict with these objectives. Professor Pieth acknowledged that all international conventions arguably contain an implicit exemption in respect of actions safeguarding national security.[163] However, he questioned whether Clause 15 could not be limited to providing an exemption for "defence and public security in a very narrow sense"—a sense that would "exclude economic considerations".[164] He suggested that, if Clause 15 did not exclude such "economic considerations", it would risk non-compliance with the OECD convention". He told us:

"My uneasiness is [that] we are here talking in an economic context and we all know that secret services have been heavily involved in economic espionage. It would certainly be against the Convention to allow a secret service agency, for the purpose of furthering business, to use such an exemption. That is where we would really be very concerned".[165]

Conclusion about Clause 15

152. We have serious concerns that the breadth of the Clause 15 exemption for intelligence agencies is such that Clause 15 risks non-compliance with the UK's obligations under the OECD convention and the Council of Europe's criminal law convention. It seems to us that the Clause 15 exemption is compatible with international law in so far as it promotes two of the three purposes for which the intelligence agencies may exercise their functions, national security and the prevention and detection of serious crime. We are concerned, however, about the proposal to extend the Clause 15 exemption to functions exercised for the third purpose: acts or omissions of the Security Service intended to safeguard the economic well-being of the UK and, even more broadly, to acts or omissions of the Intelligence Service or the GCHQ done or made in the interests of the economic well-being of the UK. For the following reasons, we consider that drawing the Clause 15 exemption so broadly as to include these cases would appear to risk placing the UK in breach of its international obligations:

a) Article 5 of the OECD convention provides that the investigation and prosecution of offences under the convention "shall not be influenced by considerations of national economic interest … or the identity of the natural or legal persons involved." As presently drafted, Clause 15 would appear to be in direct contravention of article 5.

b) Giving the intelligence agencies licence to commit corruption offences in the interests of the economic well-being of the UK would appear to undermine the objectives of the OECD convention and the Council of Europe's criminal law convention. A very wide range of corrupt activities could fall under the umbrella of safeguarding or promoting the UK's economic well-being; such activities, of their nature, risk undermining other democratic societies or compromising economic development and international competition. Likewise, such activities would risk appearing immoral in the eyes of the international community. Very few, if any, of these activities would be sufficiently vital to justify that risk.

153. For these reasons, we recommend that the Government gives further consideration to the question of whether the Clause 15 exemption for intelligence agencies is so wide that Clause 15 risks non-compliance with the UK's international obligations.

154. We also recommend that the Government considers whether Clause 15 should be amended so that the exemption for activities of the intelligence agencies applies only to acts or omissions done or made in the interests of national security or of preventing or detecting serious crime.

158   The UK has not yet ratified the Council of Europe's criminal law convention, although we understand it intends to do so shortly; see Annex 2 Back

159   Q373 Back

160   Ev 143 DCB 12 (GRECO) Back

161   Ev 169 DCB 32 Back

162   Q 593 Back

163   Q 401 (Professor Pieth) Back

164   Q 413 (Professor Pieth) Back

165   Q405 Back

previous page contents next page

House of Lords home page Parliament home page House of Commons home page search page enquiries index

© Parliamentary copyright 2003
Prepared 31 July 2003