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7 Jan 2010 : Column GC21

7 Jan 2010 : Column GC21

Grand Committee

Thursday, 7 January 2010

Bribery Bill [HL]

Bill Main Page
Copy of the Bill
Explanatory Notes
1st Report from the Constitution Committee

Committee (1st Day)

2 pm

Clause 1 : Offences of bribing another person

Amendment 1

Moved by Lord Lyell of Markyate

1: Clause 1, page 1, line 3, after "if" insert "acting with corrupt intent"

Lord Lyell of Markyate: I will speak to Amendments 1 to 4, which are happily grouped together. Indeed, I suggested that they should be grouped together when I tabled them. The amendments seek to add to the Bill the overall comment that bribery should be an offence that should carry, as an essential ingredient, the requirement that it be exercised or committed with corrupt intent. I put down as an alternative that it should be committed dishonestly, but I put forward my "dishonestly" aspect more as a probing amendment. I put it down because I spoke at Second Reading on the relevance of dishonesty and its closeness to corruption. I thought it would be helpful, rather than just to leave it out, to let us explore that so that I can better explain the value to the Bill of adding the words "corruptly" or "with corrupt intent". The exact words can be better dealt with by the parliamentary draftsmen, but it is the objective of adding "corrupt intent" that I hope to persuade the Committee to adopt.

Transparency International has absolutely nothing to fear from the addition of these words. I am very glad to see both the noble Lord, Lord Thomas of Gresford, and the noble Baroness, Lady Whitaker, in their places.

Lord Goodhart: I am a member of Transparency International; my noble friend is not.

Lord Lyell of Markyate: Yes, indeed. I know and deeply respect the noble Lord's work for Transparency International. It is not the membership of Transparency International of the noble Lord, Lord Thomas, which I was referring to, but a very pertinent comment that he made at Second Reading. He said that this could all be sorted out in court. He said that by the time we get to court, what might seem complex on paper will all seem clear. I will come to that in a moment.

I say to Transparency International: do not worry. I am not putting this in to make it more difficult to convict guilty people. I am putting it in to make clear what the Bill is about. It is the Bribery Bill and, for more than 100 years what the courts have been dealing with is bribery and corruption. Those words have always been an essential part of the legislation. Yes, there has been some discussion as to whether corruption involved dishonesty. I have looked at all the cases and,

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with the greatest respect to, I think, Professor Lanham, it is unfair to the courts to say that the understanding of the word "corruption" is in "impressive disarray". There have been times when learned judges have said that it imports the concept of dishonesty. There have been other times when it has been said that it was unnecessary to bring in the concept of dishonesty.

I am much indebted-as, I think, the Committee would acknowledge that it is indebted-to the work of Colin Nicholls QC. He has written probably the standard work on this subject and has made amendments and prospective amendments to it. He has kindly provided these to the Committee; I am sure the Government and those assisting the Minister will have them. I know Colin Nicholls well, and I respect him very deeply. We have worked on cases together on subjects that bring in his expertise. He is extremely thoughtful. One of the things that he has done for the Government-I have not put this down as an amendment because I want to concentrate on the key point-is to redraft the opening clauses of the Bill in a way that makes them easier to read. I say that with all respect to parliamentary draftsmen, who have done a skilful job. At this stage in our consideration of the Bill, however, I am disinclined to try to redraft the first four clauses. I am not saying that it could not be usefully done, but I ask the Minister to get his team to reflect on it, because in many ways Mr Nicholls' redraft has much to recommend it.

I return to the advantages that will be gained by making it clear that corruption and bribery still mean very substantially what they have always meant. Without that, the use of the word "improper" may cause considerable difficulty. I am sad to see that the noble Viscount, Lord Colville of Culross, cannot be with us on this occasion; no doubt he will play a part at other times.

The primary source of statutory interpretation in every case is the natural and ordinary meaning of the words that Parliament has chosen to put into a Bill. The words that we are considering here are principally "corruption" and "improper" or "impropriety". In the most recent version of the Shorter Oxford English Dictionary, the word "corruption" has other meanings, such as bodies corrupting after death, which are obviously completely irrelevant, but as soon as you get to the area of criminality, you find under "corrupt" as a verb:

That is the meaning of the word which the Law Commission, as I pointed out in my earlier speeches, said is understood by 95 per cent of the population. I was quite impressed to see that it put the figure so high, but people understand bribery and corruption. Hansard will not be able to write down what I am about to do, but jurymen will well understand the gesture of the backhander. They know that it means bribery and that that is corrupt. They are swift to see it, and they are quite rightly ready to convict for it. It has not caused trouble in the past. I specifically asked the new Director of Public Prosecutions, Mr Keir Starmer QC, to let us know of any instances in the past 15 years when it had caused any problem. He has written to the committee-I have the letter here; the

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Minister will certainly have it-saying that he knows of no case in which it has caused any difficulty in the past 15 years.

I was quite closely involved in this whole area when I became Parliamentary Private Secretary to Sir Michael Havers in 1979, when we were looking at this whole business of prosecuting the broader areas of fraud. I personally know of no cases in the past 30 years where the legislation, for all its faults and overlapping, which could be tidied up and tightened up quite usefully, actually caused difficulties in prosecution. If the Minister can bring forward examples, it will illuminate the work of the Committee, but I do not know of any such cases. I have looked at all the cases that deal with the question of conflict between the words "bribery" and "dishonesty".

Those cases are wonderful lawyers' stuff, in which great names that I remember from my earlier days, such as Lord Hutchinson of Lullington, who was a very famous defender, were putting forward all kinds of wonderful arguments about why the learned trial judge, learned recorder or whoever should or should not have mentioned the word "dishonesty". I learnt from that, and revised what I said at Second Reading. In the end, what the courts came down to was not to mess about by adding unnecessary concepts. Corruption probably does incorporate dishonesty, as it does in the dictionary definition that I just read out, which says,

The ordinary dictionary meaning incorporates it, but the courts said, "Don't muddy the waters. Corrupt means tendency to corrupt", and that is a straightforward meaning.

That has a lot to recommend it over complete reliance on the word "improper". If we look at the natural and ordinary meaning of that word from the same volume of the most recent Shorter Oxford English Dictionary, there are three different meanings. It can mean,



Then there is a wonderful quote from the famous writer Santayana, who said:

"This deportment, undignified on weekdays, was positively improper on Sundays".

I say that only to give the Committee a little pleasure, but it is obviously a very long way from the criminal context, which is being built around the word now.

I am not seeking to dismantle that context or take away what parliamentary draftsmen and the Law Commission have skilfully and with great effort constructed. I am simply seeking to group them together with one other important concept, which has stood the test of time, which is the concept of "corruption".

If I am successful, or if the Minister finds favour and we go away and look at this, we shall not be alone in the common-law world. Again, I am indebted to Colin Nicholls QC for this. In the United States federal code, the essence of the offence of bribery is that it

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should be done corruptly. The object must be to induce the recipient to misuse his official position, and inclusion of the word "corruptly" denotes an "evil motive or purpose". That idea of evil motive or evil mind was picked up by Lord Chief Justice Parker when one of these cases came before him.

2.15 pm

Canada, New Zealand and South Africa all include the word "corruptly" without further statutory definition. In Australia, the offence requires mens rea or a criminal mind, although interestingly at the federal level they choose to use the word "dishonestly" rather than "corruptly". However, Australian states variously use the words "dishonestly", "corruptly" or "improper".

As I said, I looked at the cases right up to the level of Lord Chief Justice and the one most often referred to is the very one to which the Minister referred when he wrote to us after Second Reading-I have his letter here. It is the case of Cooper v Slade of 1858, in which it was said that to do something corruptly is to do an act that the law forbids as tending to corrupt. So, again, there is a concentration on straightforward language which is well understood.

I shall deal with the practical problems and will then sit down. The practical problems were raised partly by the noble Lord, Lord Thomas of Gresford, to whom I have referred. I agree with the noble Lord that, particularly in a great many of the more serious cases, when a case gets to court it will be possible to slot the facts into the fairly complex structure of the present first five clauses of the Bill. They have to be slotted into a structure which basically falls back on five or four other concepts. One is "good faith". I do not think that that is too difficult; it is pretty clear whether someone has operated in bad faith. The second is "impartially", which is quite difficult, and I shall come to a planning example in a moment. The next is "breach of trust". That may be clear because there may be very obvious cases where people are paid money to break trust, but breach of trust is a slightly more complex idea. When we look at what is regarded as "improper performance", the Bill tells us that it is performance in breach of-and I am about to produce the clearest words in the English language-a "relevant expectation". That may be regarded as irony, and it is always dangerous to use irony in Parliament, but what is a relevant expectation? In Clause5, we find that a relevant expectation is what a reasonable person would expect.

I come to the interesting exchange at Second Reading between my noble friend Lord Waddington and the noble Baroness, Lady Whitaker. My noble friend personalised it to himself but I shall not personalise it in any way. He said that if someone arriving at the baggage-claim area of an airport wanted to get away and paid a tenner to one of the baggage-handling staff to go round the back and find his bags, that surely would not be intended to be caught by the Bill. In a moment, I shall ask the Minister what he has to say about that.

Baroness Whitaker: The noble and learned Lord referred to my presence. I do not know whether he was going to refer to my rejoinder. If not, perhaps I might

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add for the sake of completeness that I said that if I were behind the noble Lord, Lord Waddington, in the queue and was too poor to have £10, I would regard it as corrupt on his part to have made that facilitation payment.

Lord Lyell of Markyate: I am very grateful to the noble Baroness. I must apologise for a serious frailty, which is that I wear two hearing aids; they went dead on me, partly because I was trying to make them clearer, when she was making her point. I now have the loop. Will the noble Baroness be kind enough to make her point again?

Baroness Whitaker: Of course. I just said for the sake of completeness that my comment after the noble Lord, Lord Waddington, made that point was that if I were behind him in the queue to get my luggage off the carousel and was too poor to have an extra £10, I would resent his action and consider it bribery.

Lord Lyell of Markyate: I am extremely grateful, because the noble Baroness, Lady Whitaker, has pointed up the dilemma. If the person behind in the queue had known that the person giving the tenner was doing it because the baggage included that of his companion who needed to get swiftly to hospital, they would probably take a very different view of it. The difficulty arises from deciding whether we are intending by this Bill to make what in the circumstances could either be well justified, or at least well understandable, but what might also be a selfish act by a rich man for his own advantage, a criminal offence. Is that the criminal offence of bribery which, among other much more major offences, the Bill is intended to capture?

Lord Borrie: The use of the word "improper", which I know the noble and learned Lord wishes to expand on in his amendment, suggests to me that those cases are all improper. Whether those with power to consent or not to prosecution would wish to proceed is another matter. If it went to court, again it would go to mitigation. Surely we are talking here not about whether something is a bribe, but whether prosecution is justified.

Lord Lyell of Markyate: The noble Lord brings me on to the next part of my probing. In his reply at Second Reading, the Minister made a number of points about both guidance and proportionality. It is important to remember that there are two tests for the prosecution of any offence. The first is whether there is a sufficiency of evidence to give rise to a realistic prospect of conviction before a jury. The second is whether it is in the public interest, which will be much affected by a large number of matters. One may be that it is too trivial to prosecute; another relates to the person committing the offence. Those of us who are older well remember the unfortunate Isobel Barnett, who became a kleptomaniac and was, I think, eventually prosecuted-I have a horrible feeling that she killed herself. Those sorts of things raise very difficult public-interest questions.

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Before you give a tip to someone to do something slightly out of the ordinary, should you say to yourself, "I am committing bribery if I give this tip"? Perhaps you are in a hurry for a good or a bad reason and want help from a servant of the airport. If you want to give them a tip in circumstances where the noble Baroness, Lady Whitaker, says it should be the offence of bribery, are you to say to yourself, "It is only the fact that I might be prosecuted which prevents me. I am actually committing a criminal offence"? That is my problem.

I do not believe that we would commit a criminal offence if the word "corrupt" is inserted. If you look at it like that, will a jury say that that kind of behaviour is an offence, although it may be justifiable or despicable in some cases? The behaviour of a cigar-smoking fat cat who gives a tenner just to get personal advantage is not attractive. It is rather improper: I would not like to be seen doing it. But is it the offence of corruption? Is that what we are dealing with here? That needs to be clear in the Bill and not simply left to prosecutorial discretion. That deeply worries me.

The noble Lord, Lord Borrie, may be able to throw light on a planning example: a large store wants to build a superstore on the edge of a medium-sized town, which will have a substantial effect on the high street. Outside Hemel Hempstead, one of the towns that I represented and my first constituency, there are a number of superstores. To a great extent, the main part of the town now consists of estate agents and charity shops. Much business has moved away. Small businesses cannot possibly match the planning gain that a big firm can operate. What is a planning department expected to do? I think that it would be expected to act impartially, but perhaps it is not. That raises one of the difficulties as to the intent of this Bill. I do not think that people would say that a planning department is being corrupt in accepting planning gain on behalf of a community, even though it is heavily influenced by it. It raises a grey area.

If the word "corrupt" is added, people would say, "No, it is perfectly clear that this is not corrupt". But if you break down impropriety into its factors, it probably matches up with all the factors and you are left with relevant expectation. How do you decide what is relevant expectation? In civil law, that is fine. It is well understood that a council will take that sort of decision, and people accept it. However, we now introduce a criminal aspect to this and say that the same conduct matches the evidential requirements for criminality and that it is only the prosecutor's individual judgment that stands in the way.

2.30 pm

Although I was not able to take part in the debate, the same problem came before this House in relation to the Equality Bill. In the other place, my right honourable friend Michael Howard made the point that it is Parliament and not guidance from government that must lay down the law. I shall come to a close shortly but I look forward to seeing the guidance, about which there are amendments, and it would be of very great help to our debates if at least the first draft of the guidance were available to this House before

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Report. We would then be able to understand better what is being dealt with in black letter law in the Bill and what is being dealt with in guidance.

My final point concerns facilitation payments. We should remember the United States' Foreign Corrupt Practices Act. The Americans have in many ways rightly been pushing bodies such as Transparency International to broaden international standards of conduct. That is a very good thing and I strongly support it; I am not trying to put a spanner in the works. However, 11 years after the FCPA of 1977, a major amendment was introduced in 1988 allowing facilitation payments, and questions such as the one raised by the noble Baroness, Lady Whitaker, in relation to a tip or bribe would be dealt with by the facilitation payments aspect of American law. I myself am not very keen on the idea of facilitation payments but, although I am not going to table any amendments to suggest that we have them, they do leave a lacuna.

I hope I have said enough to show that this is a serious issue. I am not trying to put a spanner in the works; I am trying to improve the Bill by making it clearer and using language which is much better tried and tested than some of the comment on it suggests. It has caused no practical problems in the past and would, in my opinion, stand us in good stead in the future.

Lord Goodhart: My Lords, I believe that Amendments 1 to 4 introduced by the noble and learned Lord, Lord Lyell of Markyate, are unnecessary and, indeed, potentially damaging. The requirement under Clause 1 is that the accused person must either have encouraged or be aware of the improper actions by the recipient in relation to the advantage that the accused will be giving or has given the recipient. I believe that that in itself involves and defines corruption on the part of the accused, and I think that it is clearer than just using the word "corrupt".

Therefore, including in Clause 1(1) a specific reference to "acting with corrupt intent" or "acting dishonestly" is, in my view, unnecessary. Worse, it provides an opportunity for arguing that the new words provide an additional condition that must be satisfied before there can be a conviction. For example, it could be argued that if the accused person did not wish to pay a bribe but was aware that he or she would not get a contract or other benefit which they were seeking without an improper bribe, they are not acting with corrupt intent or dishonesty. However, I believe that coming to the conclusion that paying a bribe with reluctance is not in itself dishonest will undermine the Bill. The Bill intends that it should be a crime not only to offer a bribe, but to pay a bribe however reluctantly.

The same arguments apply to Clause 2, which makes the request or receipt of a bribe a crime by the recipient. I should also point out that the amendment proposed by the noble and learned Lord to Clause 2 is completely inconsistent with subsection (7) of Clause 2. For those reasons, I hope that the noble and learned Lord will consider withdrawing his amendment.

Lord Lyell of Markyate: I take the noble Lord's point in relation to the word "dishonesty". Although I would not give it much credence myself, I could see

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that the defendant might seek to say that he was not acting dishonestly. But to say that you are not acting corruptly because you are going into a den of corruption and taking part in it does not seem to carry any weight at all. Although I respect the points that the noble Lord has made, I do not believe they are an answer.

Lord Goodhart: With respect to the noble and learned Lord, that simply strengthens the argument that the new wording he proposes is unnecessary. It is potentially either unnecessary or possibly damaging to the purposes of the Bill and for that reason I hope that he will withdraw his amendment. If it goes further, I hope that it will not reappear at Report.

Lord Mackay of Clashfern: My Lords, it is important to have in mind the situation of facilitation payments that my noble and learned friend mentioned. The question of whether you put in something about dishonesty or corruption in relation to the conduct of the potential briber raises the very issue of whether you wish the Bill to include facilitation payments. If you include facilitation payments, they are not offered corruptly. If you want to exclude facilitation payments, you put in "corruption" and the Bill has that effect, but the two are very closely linked. At the moment anyway, I do not see much possibility of distinguishing them.

As my noble and learned friend reminded us, the United States of America, with experience of its legislation, decided expressly to exclude facilitation payments. That is an important matter of policy. It is more than just a question of the drafting of this Bill: it is a fundamental question of policy about whether we go along with the United States or go in the way that I think the Bill, as presently drafted, suggests.

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