Draft Bribery Bill - Joint Committee on the Draft Bribery Bill Contents


193. Clauses 13 and 14 would give the Secretary of State power to prior-authorise acts of bribery by the Security Service (known as MI5), the Secret Intelligence Service ( known as MI6), and Government Communications Headquarters (GCHQ) where "necessary" for the proper discharge of their functions, either within the United Kingdom or overseas.[303] The Secretary of State must be satisfied that "satisfactory arrangements" are in place to monitor the disclosure of information and any subsequent acts that take place. We note that the power of authorisation would not extend to bribery of foreign public officials under clause 4, or to any equivalent offence under clause 1.

194. The proposal is based in large part on the Secretary of State's existing power to authorise the Secret Intelligence Service to commit criminal offences and civil wrongs of any kind under the Intelligence Services Act 1994. The key differences are that:

  • The Security Service and GCHQ would for the first time be able to gain an authorisation to bribe;
  • The Secret Intelligence Service would be in the same position as present, except that the 1994 Act would be narrowed to remove the power to bribe foreign public officials; and
  • The 1994 Act is limited to acts overseas while the draft Bill applies to acts anywhere.

195. The Secretary of State for Justice justified the proposal by reference to the increased scrutiny of the security services:

    the intelligence and security agencies now are the subject of a very high degree of statutory control, they are statutory bodies and their work is then subject to detailed invigilation by the various commissioners who are all retired members of the senior judiciary, and they have staff as well. So you have got the Surveillance Commissioner, the Intelligence Service Commissioner and the Intercept Commissioner looking at various aspects of their work and, for example, in terms of the Intercept Commissioner, crawling over warrants and checking whether they were authorised properly, and so on, and going back to the role of the Secretary of State if the Commissioner feels that they have not been.[304]

We received little evidence to support this change, other than from the police and the Serious Fraud Office. Neither of these organisations considered that they needed similar powers of authorisation themselves.[305]

196. We did, however, hear objections to this proposal on legal and principled grounds. For instance, we were told by the OECD's Legal Director, Nicola Bonucci, that these provisions may represent the only law in the world sanctioning bribery, which Jeremy Carver of Transparency International UK described as a "very impressive" reason to drop clauses 13 and 14 from the draft Bill.[306]

197. Further, in 2003, the Joint Committee on the draft Corruption Bill reviewed a similar power which it viewed as potentially non-compliant with the UK's international obligations.[307] The basis for the Joint Committee's concern can be summarised in broad terms as follows:

  • None of the Conventions on bribery include an express exemption that permits bribery by security services;
  • Any statutory power that is introduced to authorise acts of bribery must therefore be based on an implied exemption to the UK's international obligations;
  • An implied exception is likely to be limited to protecting national security and fighting serious crime;
  • The statutory functions of the security services include, but also go beyond, these two purposes, namely by including a third purpose of protecting the UK's economic interests;
  • Any authorisation to bribe in the UK's economic interests therefore risks non-compliance with the UK's international obligations.

198. The 2003 Joint Committee called for the Government to reconsider its options, including the potential for narrowing the power of authorisation so that it excluded any act of bribery in pursuance of the UK's economic interests (i.e. by limiting the power to protecting national security or fighting serious crime).[308] The Government has not taken up this option, which the Secretary of State for Justice dismissed in oral evidence:

    the coverage of this clause matches the functions of the Intelligence and Security Agencies and I think it would be very curious if, through this Bill, we sought to restrict the activities of the agencies more narrowly than that which has been provided in the primary legislation by Parliament.[309]

199. The Government has decided to take the alternative route of excluding bribery of foreign public officials from the 1994 Act and from the draft Bill's power of authorisation. This removes any risk of non-compliance with the OECD Convention, since that convention is limited to bribery of this kind. It does not, however, reduce the risk of non-compliance under the UK's broader convention obligations to the United Nations, the Council of Europe and the European Union.

200. The Attorney General emphasised that she could only offer an initial view, but she concluded that clause 13 would comply with the UK's convention obligations without imposing a restriction of the type proposed by the 2003 Joint Committee:

    I do appreciate the concern that an exemption for the intelligence services that is applicable to activities intended to protect the country's economic interests, and not just to safeguard national security and combat serious crime, may be incompatible with these instruments

    [… however] I do not see Clause 13 as being inconsistent with the principles or provisions of these instruments. Taken with Clause 14, it contains several important safeguards - only necessary and reasonable action can be authorised, the authorisation must be given by the Secretary of State personally or (in cases of urgency) by a senior official, and authorisations are time-limited. It should also be remembered that our intelligence services, unlike those of many other countries, are regulated by statute, accountable to Parliament, and subject to external scrutiny by independent Commissioners.[310]

201. Dimitri Vlassis of the United Nations disagreed. He noted the potential for an implied exception in limited circumstances but offered his view that clause 13 would not comply with the United Nations' Convention. We did not receive specific evidence on this issue from the Council of Europe or the European Union, but similar issues potentially arise.[311]

202. Transparency International UK told us that any decision to pursue these proposals should be taken through a more appropriate piece of legislation:

    While we welcome the Government's openness in acknowledging that bribery may be used by the security services, we have the gravest doubts as to whether any worthwhile long-term national interest is served. If the security services can make a case for such an 'opt-out', they should present it for appropriate parliamentary scrutiny; and it should form no part of any general law of bribery.[312]

203. We heard no persuasive evidence of a need for the domestic intelligence agencies to be granted an authorisation to bribe. Neither are we persuaded that this draft Bill is the appropriate vehicle to extend the security services' powers to contravene the criminal law. Finally, we note continuing doubt about whether clause 13 complies with the United Kingdom's international obligations, despite the fact that this issue was raised as long ago as 2003. For all these reasons we recommend that the Government remove clauses 13 and 14.

303   The Secretary of State must also ensure that no action goes beyond what is "necessary" and "reasonable" in the circumstances: clause 13(6) Back

304   Q592 Back

305   BB14; BB58 Back

306   Q527 Back

307   First Report of the Joint Committee on the Draft Corruption Bill, Session 2002-03, HL 157/HC 705, paras 140-154 Back

308   Above, para 154 Back

309   Q592 Back

310   BB60 Back

311   Council of Europe Criminal Law Convention on Corruption, together with its Additional Protocol; European Union Convention on the fight against corruption involving officials of the European Communities or officials of member states of the European Union; Council of Europe Civil Law Convention on Corruption


312   BB54 Back

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Prepared 28 July 2009