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13 Jan 2010 : Column GC83

13 Jan 2010 : Column GC83

Grand Committee

Wednesday, 13 January 2010.

Bribery Bill [HL]

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

Committee (2nd Day)

3.45 pm

The Deputy Chairman of Committees (Lord Geddes): My Lords, it is striking 3.45 pm and the monitor says that it is 3.45 pm. As is usual on these occasions, I advise the Grand Committee that, if there is a Division in the Chamber while we are sitting, the Committee will adjourn as soon as the Division bells are rung and resume after 10 minutes.

Clauses 10 and 11 agreed.

Clause 12 : Defence for certain bribery offences: legitimate purposes

Amendment 21

Moved by Lord Henley

21: Clause 12, page 8, line 6, leave out paragraph (a)

Lord Henley: My Lords, Amendment 21 is also in the names of the noble Lords, Lord Goodhart and Lord Thomas of Gresford. I shall speak also to Amendment 32, which is in my name and those of the same noble Lords. Amendments 29 and 33, in the names of the noble Lords, Lord Goodhart and Lord Thomas, are also in this group.

Clause 12 offers a defence to certain charges of bribery if the person charged with a bribery offence can show that he was acting for a legitimate purpose. The defence is not intended to be widely available. Clause 12(1) details who may avail themselves of the defence. My amendment relates only to Clause 12(1)(a), which deals with law enforcement agencies, security agencies and the Armed Forces. Notwithstanding the limits in the Bill, noble Lords will be aware that the Select Committee on the Constitution considers that it may still be drawn too widely. The committee's first report of the Session deals exclusively with Clause 12. I have tabled these probing amendments to give the Minister the opportunity to explain and defend the drafting chosen by the Government. I would also be grateful if he would say when the Government will formally respond to the Select Committee's report, which came out on 4 December.

We now have a date-2 February-pencilled in for Report. The Minister is nodding, so I expect that that date is right. The committee would find it useful to see the Government's response in good time before 2 February, in case that influences how we respond, particularly in the light of what the Minister will say this afternoon, and whether we table any further amendments.

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Amendment 21 and Amendment 32, which is consequential, deal with the first of the three categories where the defence may be raised-the situation that a person's conduct was necessary for,

The Liberal Democrat Benches will deal with their two amendments in due course. I stress again that my amendment is probing. It deletes that paragraph, which is-

Lord Goodhart: Just to save time, perhaps I could point out that our Amendments 29 and 33 are purely consequential, like the noble Lord's Amendment 32. Therefore it will not be necessary for me to speak to them.

Lord Henley: I am very grateful to the noble Lord for that explanation. My Amendments 21 and 32 are designed to remove Clause 12(1)(a), which refers to,

Clause 12(1)(a) casts a wide net. It includes not just the police but all law enforcement agencies and those acting on their behalf. The Select Committee on the Constitution notes that other organisations covered would include HM Revenue and Customs, the United Kingdom Border Agency, local authority trading standards, environmental health officers and others. It would be helpful if the Minister could give the committee a full and comprehensive list of all the agencies that will be covered, which under Clause 12 will be able to engage in bribery and get away with it if their actions are in pursuit of, or necessary for preventing, detecting or investigating serious crime, as defined by Sections 81(2) and (3) of RIPA, which is itself a wide definition.

The most striking remark made in the Constitution Committee's report is:

"Drawing the defence in terms as wide as this jeopardises the constitutional principle of the rule of law".

Those are very strong words from a highly respected committee of your Lordships' House. I am sure that noble Lords will agree that there are good reasons, which we will debate shortly, why organisations involved in protecting national security have that defence under Clause 12, but there seems to be a less strong case for myriad domestic organisations to be given the go-ahead to commit bribery.

The report recommends in paragraph 12 that:

"Unless compelling evidence is produced as to why clause 12(1)(a) is necessary in respect of each of the law enforcement agencies to which it may apply, it should be omitted".

I have tabled this as a probing amendment, and it is now up to the Government to do what they can to justify Clause 12(1)(a). No doubt other noble Lords will have comments that they wish to make, but I look forward to hearing the Government's views on why the subsection is necessary. I beg to move.

Lord Goodhart: My Lords, my noble friend Lord Thomas of Gresford and I have put our names to Amendment 21. In doing so, I make it clear that we regard the terms of the amendment as more than a probing amendment. As we now stand, it will almost

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certainly be our intention to ensure that the amendment is brought back on Report when it can be properly voted on.

The draft Bill, which we studied at the time of the Joint Committee, provides in Clause 13 that bribery would not be an offence if it was authorised by the Secretary of State. The Secretary of State could authorise bribery only if and in so far as it was necessary to the proper discharge of the functions of MI5, MI6 or GCHQ. The Joint Committee was not satisfied that bribery should be legitimated, even on the basis of there being an authorisation from the Secretary of State. I shall read what the Joint Committee said about that in paragraph 203 on page 68 of Volume 1 of the report on the draft Bribery Bill, and I should repeat, as I have said several times before, that the report of the Joint Committee was unanimous:

"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".

The Government did not accept that recommendation by the Joint Committee. Not only did they not accept it, they came back with a new clause, Clause 12 of the present version of the Bill, which extended the power to bribe legally. Under Clause 12, not only are the security services exempted from liability for bribery if it is in the proper exercise of their functions, but Clause 12 also extends the exemption to law enforcement agencies and the Armed Forces when on active service. I regard this as extraordinary.

My noble friend and I will object to the inclusion of any part of Clause 12 when we come to the debate that Clause 12 should stand part; of course, we recognise that we cannot vote on that here. If Clause 12 is removed, that would get us back to the recommendation of the Joint Committee that the Bill should not contain legal exemption from bribery for anyone.

Our amendments in this group and the two groups that follow would exclude the exemption of the law enforcement agencies and the armed services. The amendments in this group, starting with Amendment 21, apply to the law enforcement agencies and remove them from the scope of Clause 12. That is plainly appropriate. The Serious Fraud Office and a senior representative of the police both said, in written evidence to the Joint Committee, that the exemption should not apply to them; I refer to paragraphs 191 and 321 of the evidence volume of our report.

The exemption from the bribery law is anyway unnecessary for the law enforcement agencies. It cannot be improper for someone with information that may lead to the conviction of criminals to disclose that information to the police, so neither the police nor the person who makes a disclosure can be prosecuted for the offence of bribery even if the police offer rewards for the information that they have received. There is absolute no need to retain Clause 12(1)(a).

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I strongly agree with the views here expressed by the Constitution Committee. I repeat, slightly more fully than the noble Lord, Lord Henley:

"Drawing the defence in terms as wide as this jeopardises the constitutional principle of the rule of law. Unless compelling evidence is produced as to why clause 12(1)(a) is necessary in respect of each of the law enforcement agencies to which it may apply, it should be omitted".

The other amendments in this group-29, 32 and 33-are purely consequential, and would remove parts of Clause 12 that would become irrelevant if Clause 12(1)(a) were removed.

Lord Pannick: My Lords, I support these amendments and agree with the noble Lords, Lord Henley and Lord Goodhart. One of the matters that influenced the Constitution Committee, of which I am a member, is that the Joint Committee noted at paragraph 195 of its report that the evidence that it had received from the police and the Serious Fraud Office on the defence for the intelligence services did not suggest that the police and the SFO themselves believe that they need any such defence for their own activities. It is therefore surprising, to put it mildly, that the Government have come forward with an amendment to the draft Bill which confers such a broad power on law enforcement agencies, themselves so broadly defined in Clause 12. Can the Minister tell us whether there is evidence to suggest that the absence to date of a power as would be contained in Clause 12(1)(a), were it to be enacted, has hindered in any way the effective performance of law enforcement functions to date?

4 pm

Viscount Colville of Culross: My Lords, following on what has just been said by the noble Lord, Lord Pannick, and others, this is a remarkably big extension of what was set out in the draft Bill, and I hope that the Government will now give us an explanation of why this has happened. The intelligence services and GCHQ were included in the draft legislation we considered in the Joint Committee. Now we have a large range of law enforcement agencies-and it is a large range-as well as the security services and the Armed Forces, and it has never been explained. There is nothing about it in the Explanatory Notes whatever, and nothing in the Government's response to the Joint Committee.

I am concerned about this because the Government's defence of the original proposals in the draft Bill was that it was perfectly all right for the intelligence services and GCHQ because under the Intelligence Services Act 1994, first, you have to have a warrant from the Secretary of State issued in person or by a very senior official, and it lasts for only six months; secondly, that this is a special matter and it has been dealt with specifically by Parliament; and thirdly, there would be a review by a parliamentary committee of everything that had been done. Added to this Bill are the enforcement agencies, the security services and the Armed Forces for whom no provision is made for obtaining a warrant, no time limit on any authorisation that may be obtained, and no subsequent scrutiny of what they have done. That knocks all the chocks out from underneath the defence given by the Government to the original proposition because it is not now on all fours with what the Government originally proposed.

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What is the process of authorisation going to be for this? Who is going to give it, and how long will it last? What scrutiny procedure will take place? Enforcement agencies are to some extent governed under RIPA and there is in place a procedure, of which I declare that I am a part, in that it is looked at by the commissioner in charge of RIPA affairs, but that is not the same as granting an authorisation in the first place, nor is there any time limit on it. Frankly, I do not understand why this large extension of these powers has been introduced without either any explanation or safeguards. Parliament is due an explanation from the Government of why this has been done.

Lord Williamson of Horton: My Lords, like others, I am struck by the difference between the draft Bill and the Bill now before us. The draft legislation was rather aptly headed,

"Authorisations for intelligence services".

It is true, as the noble Lord, Lord Thomas of Gresford, has said, that the Joint Committee was opposed to this, but the Government have taken a consistent view on the issue of the intelligence services. They maintained at the time that it was necessary, they maintained it in their response to the Joint Committee, and they have maintained it again today. Although of course I subscribed to the Joint Committee report, I must say that I understand the Government's concern about the intelligence services. We will see about that when we come on to that, but this amendment does not deal strictly with that, it deals with the law enforcement agencies-words which did not appear anywhere in the draft Bill examined earlier.

Like my noble friend Lord Colville, I think that we need to know why the Government have extended the defence in this new form-in a completely different form from that in the draft Bill-to this further category. It certainly requires a considerable effort of will to understand why that is necessary. I stand by the position I took on the draft Bill, but I have sympathy with the Government on the broad point about protecting the public interest in relation to the functions of the Security Service. However, I am not too sure why it is necessary to introduce all these other people into the defence for bribery offences. We definitely need an explanation of that.

Lord Mayhew of Twysden: My Lords, I agree. I do not want to delay more than I hope is necessary the Minister's reply to these pressing invitations to explain what exactly has happened. Here we have this excellent procedure for scrutiny of a draft Bill, a draft Bill as put forward by a Government, who say to themselves, "Let us see what these people say about this". Well, we know what these people said about it. Paragraph 203 of the report, which has already been read out, states:

"We heard no persuasive evidence of a need for the domestic intelligence agencies ... Neither are we persuaded that this draft Bill is the appropriate vehicle to extend the security services' powers to contravene the criminal law".

Lo and behold, back come the Government, having seen what these people say about it, with an extension of these provisions. I should like to know quite what it is in the way of an urgent request for an extension of this Bill's ambit. I should like to know what has led to

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this rather remarkable change of mind on the part of Ministers. Will the Minister explain, or give an example of, the extent of "law enforcement agency"? One reads at line 29 on page 8 of the Bill that "law enforcement agency" means,

I want to know, if the Minister will oblige me, whether that would extend, for example, to the local weights and measures inspectorate, and if it does not, why not?

Lord Lyell of Markyate: I shall speak briefly because almost everything has been said. I support these amendments certainly as strong probing amendments and await the Minister's reply to the questions that have been put. Like the noble Lord, Lord Pannick, I sit on your Lordships' Select Committee on the Constitution and I was on the Joint Committee on the draft Bill. The Minister will be aware that the Select Committee on the Constitution raised a number of questions, one of which was why the safeguard of there being a Minister responsible for overseeing the use of these powers had been removed. To quote it, the removal in the Bill of the safeguard of there being a Minister responsible is of itself a matter of constitutional concern. I see that the Minister is looking at me quizzically, but I await his reply. No doubt, it will be a very good one if he has grounds for being quizzical on this. The report of the Constitution Committee goes on to say that,

There may be an answer to that; it seems a proper question to raise. Likewise,

as other parts of the security services.

There are important questions to be raised. We do not want the law enforcement authorities to bribe unless there is a powerful reason for doing so. I support what my noble and learned friend Lord Mayhew indicated in this respect.

Lord Mackay of Clashfern: My Lords, I agree with what has been said. I have two short questions. First, if this was necessary, why was it not in the draft Bill? Did something happen in the consideration of these matters? Secondly, can the Minister give us some idea of the circumstances in which it is envisaged that this clause might be appropriate? Can he give an example of a situation in which the enforcement agencies would require to bribe people?

The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Bach): My Lords, these amendments concern Clause 12, which provides a defence for law enforcement agencies, the intelligence services and the Armed Forces. These amendments would have the effect of removing from the scope of the defence the activities of law enforcement agencies in the prevention, detection or investigation of serious crime.

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Obviously Clause 12 has attracted significant comment, both at Second Reading and today, and the Constitution Select Committee of the House has expressed a number of concerns about the scope of the defence. Before I get into the details of the amendment, I must emphasise in the strongest possible terms the importance that the Government attach to Clause 12. It is important on a practical level because, for reasons that I shall set out, there is an operational need for the defence. We do not seek to hide the fact that certain arms of the state may need to offer financial or other inducements that may amount to a bribe in order that they can effectively carry out their difficult functions. Clause 12 makes the position entirely transparent. However, it is also important as a matter of principle that we should deal with the issues highlighted by the clause in an open and transparent manner.

The police and other law enforcement agencies have an important role to play in protecting and defending the public from the threat caused by serious crime. Our objective is to ensure that these law enforcement agencies are not hindered in tackling serious crime. Often financial or other inducements may be the only way to obtain vital information. I am surprised that noble Lords think that that is not so, but that is what happens from time to time.

In the normal course of events a payment for assisting in the investigation of crime is unlikely to amount to bribery, but there are occasions in which such conduct could amount to an offence.

Lord Thomas of Gresford: Can the Minister say whether in the past 100 years there have been investigations or proceedings brought against a police officer for offering money for information?

Lord Bach: Not money for information in the sense that the noble Lord means, but I was just going on to say that where, for example, the provision of information involves inducing someone to breach an expectation of trust, it is not inconceivable that a prosecution could then follow. While this concerns an activity covered by the Bill-for example, in the course of a person's business or employment-the use of an inducement could constitute an offence. All prosecuting authorities will apply the public interest test in deciding whether to prosecute any case submitted to them. We do not consider it satisfactory to leave law enforcement officers in doubt about the circumstances in which such conduct will be considered legitimate.

4.15 pm

Lord Goodhart: Can the Minister explain why, if this matter is so obvious, it did not appear in the Government's original draft of the Bill?

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