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Baroness Whitaker: I thank my noble and learned friend the Attorney-General. I am sure that the Government will consult the OECD's evaluation mechanism to assure themselves that they are in compliance. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 108 [Bribery and corruption committed outside the UK]:
[Amendment No. 179 had been withdrawn from the Marshalled List.]
[Amendments Nos. 180 to 183 not moved.]
Lord Dixon-Smith moved Amendment No. 184:
- After Clause 108, insert the following new clause—
The noble Lord said: The reasoning behind the amendment lies in the brutal reality that the intention behind Clauses 107 and 108 is entirely good and ought to be supported. As has been pointed out, the OECD wants adoption of such measures by all of its members. If a country such as the UK is not playing a leading part in that, we cannot hold our heads high.
We must consider the words of the clauses and what happens in the world. Clause 107 states:
However, one needs to think a little about it. Let us consider, say, a hydro-electric dam in the back country of one of the many remoter nations of the world. A small part in the electric generation equipment packs up and the power of the dam to continue generating is endangered. Let us say that the part was British equipment and the British agent immediately sent for the spare part which may have a low value. Let us assume that when the telegraph comes to this country the spare part is loaded up and packed on a plane. It flies off, arrives at an airport in the third-world country and the part disappears into a warehouse at the airport. As a matter of normal practice, it is unlikely to emerge without the payment of a small sum of money to facilitate the speed of passage.
That could lead to an offence of bribery in this country. One might say that in absolute terms that is correct. However, if such cases happened to every firm in this country which traded internationally, the British courts would be overburdened with many, in one sense, trivial matters. However, in another sense, they are significant trading matters because if one cannot supply such parts quickly—if hydro-electric power stations were unable to run for the want of a nail, as the saying goes—they rapidly damage the trading reputation of this country.
The purpose of Amendment No. 184, therefore, was not to do anything to stop the possibility of such cases. However, if we invited the noble and learned Lord the Attorney-General to consider whether the case was in the best interests of the nation as a whole it might prevent some of the de minimis cases being brought. Let us suppose, for example, that we are asked to provide a new hydro-electric generating station worth hundreds of millions of pounds and in order to facilitate that contract a considerable sum of money were passed. It might then be deemed to be proper that a case should be brought.
Bearing in mind the distinction between those two levels of corruption, both of which in principle are the same but in impact are dramatically different, we
Lord Monson: I would not like it to be thought that the addition of my name almost exclusively to these amendments indicates that I consider Part 12 to be the most important part of the Bill. Most emphatically that is not the case. The problem is that the Bill has been rushed through so rapidly that it is difficult for a mere Back-Bencher to keep pace with it.
At Second Reading, the noble Lord, Lord Goodhart, speaking from the Liberal Democrat Front Bench, said that:
It used to be generally agreed that extraterritorial jurisdiction is inherently undesirable and should be confined to such serious offences as murder, torture, war crimes and, more recently, paedophile offences against small children. I do not believe that in general corruption comes remotely into that league. As the noble Lord, Lord Dixon-Smith, pointed out, the problem is that there are no de minimis provisions in the clauses as they stand.
I was about to cite a scenario almost identical to that referred to by the noble Lord. Perhaps he has borrowed something from me. But is it right that a British civil engineer, such as the one cited by the noble Lord, who distributes the equivalent of a few fivers or tenners to secure clearance of vitally needed equipment from a Customs shed, should be subjected to the full rigours of extraterritorial jurisdiction?
If these provisions are to be approved they should be confined to cases involving really large amounts of money—thousands or tens of thousands of pounds—not two or three-digit sums. Exceptions to Amendment No. 184, in conjunction with Amendment No. 183, which the noble Lord saw fit not to move but which I believe is a very good one, would go a long way to prevent a legislative sledgehammer being misused to crack a tiny nut.
Lord Thomas of Gresford: In the spirit of inquiry only, I should be grateful if the noble and learned Lord can tell the Committee whether his consent is required
Lord Goldsmith: The answer is that there are already two statutory schemes under the 1899 Act, as amended by the 1916 Act and the 1906 Act. Both require the consent of the Attorney-General. That is also what will happen under Clauses 107 and 108, because they operate in effect by way of amending those Acts or treating certain matters as falling within them. Therefore, the Government agree with what they take to be the spirit of the first part of the amendment moved by the noble Lord, Lord Dixon-Smith; namely, that a Law Officer's consent should be required. In saying that I do not intend either to bind myself or any successor as to any particular application of the consent. The fact I say that does not mean that the examples he gives are necessarily the way in which Law Officers' consent would apply. I am sure the noble Lord understands why I say that. It is right, therefore, that there is no need to put in that part of the amendment to deal with the basic offences.
For the sake of completeness, I should point out that there is a small anomaly. There is also the common law offence to which I referred earlier that could arise in certain circumstances. That does not require the consent of a Law Officer because common law offences do not require it. It arises as a matter of statute. However, at least in cases where a common law offence is being brought to avoid one of the issues in the statutory offence—which is that there is a presumption that may not be thought to be appropriate—it is the practice of the Crown Prosecution Service to ensure that they are brought to the attention of the Law Officers.
As Attorney-General I always have power to stop any prosecution, whether or not I have a statutory power of consent, by way of nolle prosequi. In practical terms even in that case it is possible. The Government do not believe that it would be appropriate to try to deal with that anomaly in this Bill, but when there is a more widescale reform of the corruption law, to which I referred earlier—the intention is to have a single offence of corruption which would sweep all this together—the Government believe that it should remain subject to consent by Law Officers.
I hope that that meets the first part of what was said by the noble Lord, Lord Dixon-Smith.
Before turning to the second part, perhaps I may say to the noble Lord, Lord Monson, that I hope to assist him in the consideration of his concerns over rushing through changes. The changes here were well considered before the Law Commission report and the White Paper produced in mid-2000, which signalled the changes so far as their appearance in this Bill is concerned. That was made clear in another place. The Front Benches of the two main parties were invited to consider in effect the inclusion of this part in the Bill. Cross-party support has been expressed for this part of the Bill and I understand that the position is that neither side has any difficulty over it remaining. I hope that that is of some assistance to the noble Lord.
Perhaps I may turn to the second part of the new clause. The noble Lord, Lord Dixon-Smith, did not address any particular comments to it, but I shall let him know what the Government's position would be. We do not think that an annual report to Parliament would be justified. The total number of persons proceeded against under the Acts in the year 2000 was some 17, which is a relatively modest number. Some idea of the additional number who might be proceeded against as a result of the Bill could be gauged from what has been the experience of the United States. It has proceeded against only two or three cases of overseas bribery per year. One can draw from that what conclusions one will. In any event, the Government's view is that a reporting requirement, given the small number of cases envisaged, is not justified. For that reason, we would not accept that part of the new clause.
I hope that overall my remarks have been sufficient to persuade the noble Lord to withdraw his amendment.
XSECTION 107 OR 108 OFFENCES
(1) No prosecution for an offence under section 107 or 108 shall be instituted except by, or with the consent of, the Attorney General.
(2) The Secretary of State shall lay before both Houses of Parliament at least once every twelve months a report on any prosecutions arising under section 107 or 108."
XFor the purposes of any common law offence of bribery it is immaterial if the functions of the person who receives or is offered a reward have no connection with the United Kingdom and are carried out in a country or territory outside the United Kingdom".
Clause 108 begins by stating:
XThis section applies if . . . a national of the United Kingdom or a body incorporated under the law of any part of the United Kingdom does anything in a country or territory outside the United kingdom, and . . . the act would, if done in the United Kingdom, constitute a corruption offence . . . In such a case . . . the act constitutes the offence concerned, and ... proceedings for the offence may be taken in the United Kingdom".
All of that is straightforward.
XWhat the Government have done with the Bill is to use 11th September to resurrect bits and pieces of legislation which have little or nothing to do with terrorism and tack them on to what is supposed to be an emergency Bill".
Rather illogically, he went on to say in relation to Part 12:
XAlthough we agree that it is technically out of place in an emergency Bill it does not require much further debate and is unlikely to take up much time".—[Official Report, 27/11/01; col. 268.]
Even if that is true—I dispute it to some extent—I cannot agree that this justifies rushing through the changes under the umbrella of anti-terrorism legislation.
11.15 p.m.
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