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Lord Bach: There is nothing secret about that. A lot of work had gone on behind the scenes to work out clauses that would relate to law enforcement agencies, particularly the police. However, time was against us, the matter went to the Joint Committee and these clauses were not put into the draft Bill that the Joint Committee looked at. I am extremely sorry that that did not happen-it would have been much preferable.
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Lord Lyell of Markyate: Perhaps I may pick up on the Minister's statement that it might be necessary for agencies to bribe someone to breach what might be regarded as-in his words-"an expectation of trust". That has a hint of the Bill, but is not the idea of breach of trust in the drafting of the Bill. Will he give an example? My impression is that it would not catch the payment of an informant. The informant would probably not be in breach of trust. He might be a wicked individual, but he would not breach any of the ingredients of the offence. A hypothetical example would be very helpful.
Lord Bach: This example will be hypothetical. An advantage given to an employee of the company in order to induce that employee to divulge information could amount to a bribe if the passing on of the information would amount to a breach of the expectation that the employee would act in accordance with the position of trust that he or she holds vis-à-vis their employer. It would ordinarily be the case that an employee cannot pass on information that the company would regard as confidential without breaching such an expectation. The fact that the information that he or she is not permitted to divulge is of assistance to the authorities would hardly be irrelevant for these purposes. The police might check up with an employee in relation to good or bad behaviour. It may just be in order to exclude a particular employer from investigation. They may pay money to an employee in order to get an answer to that question. That is a theoretical example of where it is possible that a policeman, by paying money, might make himself guilty of the offence in Clause 1.
Viscount Colville of Culross: My Lords, this is very obscure. The Minister is talking about what is called, in the Regulation of Investigatory Powers Act, a covert human intelligence source. These people come in many shapes and sizes. They are sometimes paid and used to be known as informers. They are sometimes paid by the law enforcement agency to produce information which may or may not fall within the definitions of the Bill. I have never heard it suggested that what is done by way of paying them for that information and undercover work constitutes a bribe. The Minister is now saying that it does. If that is the case, the whole thing is subsumed into the machinery of RIPA, whereby there would have to be an authorisation for this, which would be given to the police or other law enforcement agency that is asking someone to carry out the job. Is it intended that this should be the authority that gives rise to the defence in the clause? If so, that is a complete novelty.
Lord Bach: I am not saying, as the noble Viscount suggested I was, that it would necessarily mean that there was an offence of bribery committed under the provisions of the Bill; but it might. The noble Viscount
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Lord Pannick: May I test the Minister's patience? As I understand what he is saying, he is telling the Committee that the company, the employer, may have an expectation that the employee will behave with trust and will not reveal information to the police. I think that is his argument. I suggest to him that no company could reasonably have an expectation that an employee will not disclose to the law enforcement authorities information about a crime. If that is right, there would be no offence here of paying the employee to disclose to the police information about a crime.
Lord Bach: The noble Lord is very clear about that. What if the inquiry that the police officer was making was to exclude the employer from being criminally involved in whatever was going on? What if that was the position? Money had been paid over, the employer would say, "I am completely innocent; I do not want my employee talking to the police and being paid money by the police to give information, whether good or bad, about me". Are we saying that the police officer who paid the bribe would not in those circumstances be theoretically liable under Clause 1?
Lord Thomas of Gresford: I wonder whether I could give a concrete example from my experience of a few years ago. I think it was police officers, but it may have been officers of the security services, who paid £20,000 to a lorry driver for information relating to millions of pounds' worth of heroin that he was carrying on his lorry. Is that in any sense to be regarded as a criminal act on the part of the person who paid? To me, it is inconceivable. Secondly, do policemen go around worrying about paying over money to informers and asking themselves whether they are committing a criminal offence? It has been done for centuries. In this Bill, we are not suddenly criminalising some absolutely day-to-day activity of the police in paying for information. Are we?
Lord Bach: I have given the example. Regarding information, which might be information about a crime on the part of the employer, if the employee gives information about an investigation of some other company or other person, it might be that the employer took the view that he did not want his employee to breach the position of trust that the employee was in vis-à-vis him. If that was so, why should it be any different from the position of the intelligence agencies, who might find themselves in the same position? I do not think it is enough for the noble Lord to say that this has gone on for hundreds of years and it therefore
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Viscount Colville of Culross: I am sorry to interrupt the Minister but this is not at all realistic. The employer has nothing to do with this. The employer may be the subject of a police investigation. The only way in which the law enforcement agency-of one sort or another-can get the necessary evidence is to ask one of the employees to provide it. The employer does not know anything about this. The whole point is that it is done undercover. The informer certainly does not tell the employer, "I am in the pay of the police to tell them what is going on in our company". This is simply not how it works. I hope the Minister will think again about this.
Lord Bach: I have heard the strong views of the Committee; of course we will think again. That is why we have Committee proceedings: to consider the position. In due course I will make a concession on the width of the law enforcement agency panel that might be covered by Clause 12(1)(a).
We have tried to explain why the law enforcement agencies have now been brought into the Bill that is before Parliament, but were not in the draft Bill. We recognise that the creation of any defence in the Bill has to be proportionate and we have drafted Clause 12 in a way that ensures that this is the case. We have restricted the application of the defence to serious crime. In the interests of consistency, the clause, as it stands, adopts the definition of serious crime in RIPA 2000. The definition covers offences attracting, as the Committee will know, a penalty of three years or more, or which involve the use of violence, result in substantial financial gain or are conducted by a larger number of persons in pursuit of a common purpose. The limitation is an attempt to mitigate the risk of the defence being applied in respect of lower-level offences, preserving the ability of both the police and other relevant agencies to tackle the full range of serious criminal activity.
The second point that I put to the Committee is that it will fall to the person wishing to rely on the defence to demonstrate that his or her conduct was necessary to prevent, detect or investigate serious crime, should a prosecution be brought. Each case will be considered on its merits, and those concerned cannot take reliance on the defence for granted.
The Constitution Committee noted that the definition of "law enforcement agency" extended beyond the police to other law enforcement agencies, namely Her Majesty's Revenue and Customs, the UK Border Agency and, perhaps more significantly, local authorities' trading standards and environmental health officers. Although the police and the Serious Organised Crime Agency-SOCA-carry the most significant responsibility for combating serious crime, there are other agencies operating in this sphere that we should not lose sight of. The UK Border Agency has a key role in combating people smuggling. One way or another, the clause needs to capture all the relevant law enforcement agencies, but I accept that our approach may have cast the net too widely.
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I have heard the concerns expressed in Committee today and at Second Reading, and the Constitution Committee's opinion on this matter. I invite the noble Lord, Lord Henley, in deciding what to do with his amendment, at least to withdraw it today. I promise to reflect carefully between now and Report on what has been said generally as well as on whether this is too wide. I cannot at this stage commit to tabling on Report a government amendment to narrow the definition, but the concerns that have been raised in Committee have been noted. We will look at the matter at least as far as the width of "law enforcement agencies" is concerned; we will look with sympathy at attempting to amend that.
4.30 pm
A number of different points were made by noble Lords in the course of the debate. This point is worth making. We obviously live in very different times from when the current corruption laws were written back at the end of the 19th and early 20th century. Since the middle of the 1990s, for example, the intelligence service has been placed on a statutory footing, as, I believe, have the police, thus emphasising the importance of transparency and accountability. Against that background, there have been a number of examples of specific statutory provisions relating to conduct particularly by the intelligence services-for example, the defence relating to making indecent images of children inserted into the Protection of Children Act 1978 by the Sexual Offences Act 2003 and widened by the Criminal Justice and Immigration Act 2008. As with Clause 12, a defence exists there and prosecutorial discretion is not solely relied on.
The noble Viscount, Lord Colville, asked me how the police will authorise the use of bribery. Where the police consider it necessary to engage in conduct which would constitute an offence under Clause 1 in pursuit of their functions in respect of serious crime-there is perhaps a disagreement between us as to whether that is ever likely to happen-we would expect the police to have in place appropriate internal authorisation procedures. The police are used to having such internal controls and procedures in place, as is the case under RIPA. I assure the Committee that such controls will be in place in this context.
The noble Lord, Lord Pannick, asked me for examples. It was a fair question, but I am not able to provide specific examples. In recasting our law on bribery, which is the exercise in which we are involved at present, we are attempting to make the law on bribery both up-to-date and, even more importantly, transparent. It is right that we are open and clear about when payments that would otherwise be offences under the Bill should be permitted as legitimate. As I have argued, references of this sort are by no means unprecedented; I have already referred to the Protection of Children Act.
The noble Lord, Lord Henley, asked me at the start of our debate when we will be responding to the Constitution Committee report. We want to reflect on today's debate before responding to the report-I think that that is a fair decision to make. We certainly
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As for the evidence given to the noble Viscount's Joint Committee about the police and the SFO, our understanding is that in giving evidence to the Joint Committee, the City of London Police and the SFO were commenting on the authorisation scheme contained in the draft Bill. Clause 12 proposes something different. In any event, it is not our understanding that Detective Chief Superintendent Head, who, I believe, was the officer who gave evidence, was setting out a considered ACPO view on the issue.
I have tried to deal with the various questions asked me by noble Lords. We believe that we are justified in extending the provisions to include law enforcement agencies. The argument for us is how widely we should extend them. I know that we will come back to this issue in due course. I give way to the noble and learned Lord.
Lord Mayhew of Twysden: The noble Lord is extremely generous in giving way and he has been very fair, as he has always been. He said that the Government will consider whether they have cast the net too widely in the clause. I wonder whether he can answer my question, which was whether, as drafted, it extends to catching the local weights and measures inspectorate and, if it does, whether that was and remains the intention of the Government. Can he help us with that in advance of the review that he has promised?
Lord Bach: There is no doubt that the clause is widely drafted. The Constitution Committee had it right when it argued that it could cover environmental health officers and trading standards officers of local authorities. The noble and learned Lord is right about that. The matter will be in the front of our minds when we consider whether we have drafted this part of the clause too widely. It covers public authorities that investigate "serious crime", and I have been through that definition already.
Lord Lyell of Markyate: The Minister mentioned the word "authorisation" but said nothing about ministerial authorisation, a point raised by the Constitution Committee. In the example given by the noble Lord, Lord Thomas, about the practice over a long period, a conviction for bribery or corruption required one to do something corruptly. In the Bill, it has been decided not to require corruption as part of the offence of bribery. It would be in strange circumstances that law enforcement authorities bribed someone corruptly but if that did happen-and one can see that it could-it would be very corrupt indeed. However, we are not talking about that. We are talking about payments to informants for good reason, and perhaps the Minister will reflect on that more fully when he considers the broad width of the present definition of "bribery".
Lord Henley: My Lords, the Minister asked me what I intend to do with the amendment. He knows the answer because, first, it is a probing amendment and, secondly, all amendments in this peculiar procedure are probing amendments. I shall withdraw it in due course but I wish to make one or two points before I do so.
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My noble and learned friend Lord Lyell of Markyate said that no doubt the Government's reply will be a very good one. The Government did not seem to have much support before the Minister made his reply, and every speech before that seemed to show that noble Lords had considerable difficulty with the inclusion of Clause 12(1)(a), particularly as there had not been anything like it in the draft Bill. Several Peers questioned why it was not in the draft Bill, particularly the noble Viscount, Lord Colville of Culross, who chaired the committee, and the noble Lord, Lord Goodhart, also intervened to make that point.
The Minister replied that time was against us. However, the Government have had 10 or 12 years to think through the Bill and I cannot see why time is against us. It seemed more of a "Homer nods" defence-except that in this case it was not Homer the poet but more Homer Simpson who was nodding.
Lord Bach: At this juncture in the Parliament, the noble Lord should be careful about having too much fun at our expense in terms of the reason why this was not in the draft Bill. I advise him to be slightly cautious of certain eventualities. He will know from his time in government-it is a long time ago but he may just remember it-that matters of this importance are not discussed at all times. However, when they do come up for discussion, and when there is an intention to legislate, all relevant government departments need to be consulted and all the issues need to be considered. Let the noble Lord enjoy himself, of course, but I warn him to be slightly cautious about blaming us too much for the fact that we put before the Joint Committee a Bill that was not complete in every way. The Joint Committee is powerful enough, but your Lordships' Committee is a good deal more powerful.
Lord Thomas of Gresford: Is the Minister warning the noble Lord, Lord Henley, on the premise that he may be in the Minister's place in a few months' time? Is that what is behind his words, and is that an appropriate reason for the noble Lord to withdraw his amendment?
Lord Bach: The noble Lord misunderstands me completely.
Lord Henley: I will accept the advice of the Minister but I will remind him that a large number of those who have spoken also have some ministerial experience and, through our addled brains, can remember the difficulties of these matters. Even so, I repeat the fact, as was made clear at Second Reading, that the Government have had this Bill for some 10 to 12 years and so have had a chance to consider these points. Nevertheless, we have had a sort of concession from the Government. When I first listened to the noble Lord, I thought that we were going to get one during the course of this debate, but it amounts to the Government saying, through the Minister, that they will reflect on the issue. We look forward to the Government's reflections and no doubt a letter will come from the noble Lord in due course. We will look at it and possibly bring forward further amendments at Report stage. I think it is clear to the noble Lord,
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Perhaps I may also say that we noted the Government's words-I hope that I am quoting the Minister correctly-that they,
I hope that the Government will reconsider the word "hope" and make a firm commitment to respond to the Joint Committee's report before the Report stage because it is important that we have the Government's full and considered response before continuing.
Lord Henley: I thank the noble Lord for amending his words and thus, as it were, deleting "hope" from his previous remarks.
All I can say at this stage is that we have had a pretty full debate on the matter with a large number of eminent speakers, many of whom have considerable experience both of government and of the law. It is certainly something that we will want to come back to in the brighter light of the Chamber, if I may put it that way, rather than the gloom and obscurity of the Moses Room. No doubt we will have a fuller debate on this matter at that stage. In the mean time, I beg leave to withdraw the amendment.
22: Clause 12, page 8, line 8, leave out "any function of" and insert "functions relating to national security by"
Lord Goodhart: My Lords, Amendment 22 has been tabled in my name and that of my noble friend Lord Thomas of Gresford. The other amendments in the group are all in the name of the noble Lord, Lord Henley. As I have already said, we would prefer to knock out Clause 12 altogether, and that will be argued when we come to debate whether the clause should stand part. If the clause is not removed, however, we would at least want to narrow the circumstances in which the security services can legitimately pay bribes.
The Security Service Act 1989, which is not amended in any way by this Bill, refers to the functions of these bodies as including the safeguarding of,
and supporting the activities of law enforcement agencies. But we believe that for functions other than national security, it is inappropriate to permit or legitimate bribery by the security service organisations.
It is clear from the OECD convention, which this country has signed up to, that the protection of the economy of the United Kingdom does not justify bribery, and indeed that was the issue at the root of the objections to the alleged activities of BAe. It is clear that bribery cannot legitimately be used by any
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The same broadly applies to the assistance of the prevention and detection of crime. In the case of crime, disclosure of criminal acts to a police force is most unlikely to be the improper behaviour of the person who makes a disclosure, as has already been said. A court could not possibly regard this as being an improper act by an employee or an associate of the company if they were simply informing a police organisation or any other similar body of what is itself wholly improper behaviour by the employer or the company. We simply do not think that there is any serious possibility-any possibility at all, really-of this being necessary to be included in Clause 12. In those circumstances, we believe that it is desirable to restrict the power to the narrow issue of national security, whether something is authorised or not. We do not think that it is appropriate to include any of these provisions other than those relating to national security in the powers of the security organisations under Clause 12(1)(b).
Lord Henley: My Lords, I also have amendments in this group. I shall speak to Amendments 23, 24, 25, 27 and 31, which were designed to explore as precisely as possible how the defence in Clause 12 might be used by the security and intelligence services and by whom. Amendment 23 would obviously have a similar effect to the amendment that the noble Lord, Lord Goodhart, has just moved. As the noble Lord explained in his introduction, they are reflections of the observation by the Select Committee on the Constitution that it is not self-evident that the Clause 12 defence,
- "should extend also to the Services' statutory function 'to safeguard the economic well-being of the United Kingdom'".
The point that the committee was trying to make, and which I would like the Minister to address, is that there may be a valid reason for allowing the defence to bribery to apply in circumstances beyond those where the security of the country is involved, and where other considerations, in this case economic ones, are at play. Once again, this is a good opportunity for the Minister to set out to the Committee his case for Clause 12(1)(b). We will listen carefully to what he has to say.
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