12 THE SECURITY SERVICES
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
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312
BB54 Back
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