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I understand that there may be an overlap between the three different purposes here, but it is absolutely clear that bribery to protect our economic well-being is not, on its own, a ground for bribery. If the damage to the British economy comes through a fear of a terrorist programme to blow up some of our leading industrial works, it is obvious that that would fall within the national security exemption, and it would not matter that it was also causing damage to the economy. The fact that it causes damage to the economy is not an automatic bar if there are threats to national security. That argument is wholly irrelevant. I have already said why I think that we should also omit the provision for crime, as well as damage to the economy. Damage to the economy may perfectly well be a matter for the security services to investigate and try to obtain information about. Nothing that I have said would alter that. That remains a power, but to use that power by means of bribery is wholly inappropriate.



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The other matter that raised debate is Amendment 27, which requires the authorisation. I think something has gone a bit wrong with this amendment because it appears to require an authorisation before the defence can be raised. It seems to me, and most of those who have spoken on this issue have assumed this, that the authorisation would be required before the bribery took place. That is an entirely different situation, and while I can certainly see objections to authorisation acting purely as a pre-requirement to the prosecution, which is what was done with Clause 13 and the provisions in our report, I am persuaded that there are justifiable reasons-

5.30 pm

Lord Bach: I am sorry for interrupting the noble Lord, but the reason why I have made the argument about an authorisation after the bribery is to be found in paragraph 13 of the Constitution Committee's report:

"Even in the event that compelling evidence is brought forward demonstrating a clear need for the defences in clause 12(1)(a) and clause 12(1)(b), the use of these defences should be made dependent upon prior authorisation".

Lord Goodhart: That refers to Clause 12(1)(a).

Lord Bach: Clause 12(1)(b).

Lord Goodhart: It goes on to say:

"For the defence in clause 12(1)(b) such authorisation should be the responsibility of the Secretary of State".

The report says at paragraph 198 on page 67:

"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".

It is clear that that means that what is authorised is the act of bribery; it is not authorising the use. Nor would it make much sense to say that what has to be authorised is the use of this for defence.

Lord Bach: I agree with the noble Lord; that is what the 2003 document says. I am referring to the Constitution Committee's document. Perhaps that is what it means, but it does not make that abundantly clear.

Lord Goodhart: It certainly does not make that clear. I have no doubt that the Joint Committee was acting on the assumption that the "authorisation" was the authorisation of the act of bribery, which puts an entirely different picture around it. While I am not in a position to say whether the noble Lord, Lord Henley, considered this point when the amendment was being drafted, there are real grounds for saying that if bribery is to remain within the power of the security services, there must be authorisation before the act of bribery. That would of course eliminate any need for a trial. It might get the Secretary of State into trouble if the Secretary of State had authorised something that was regarded as improper, but it would mean that the individual who was responsible for the payment of the bribe was not facing a prosecution.

It seems to me that that is a much better system. It is not right to leave this decision to someone in the front line, so to speak, of the security services, who

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may not, for example, be in a position to get legal advice. This is something that I hope the Government will reconsider.

Lord Pannick: Will the noble Lord accept from me, as the only member of the Constitution Committee here today, that it certainly intended to address the question of prior authorisation for the act of bribery, which, as I think the Minister suggested, must be the logical position? Whether it is the appropriate policy is a different matter. I hope it is in order to ask whether the noble Lord, Lord Goodhart, could confirm my understanding that the Joint Committee did not reject, as a matter of procedure, prior authorisation. I think the Minister suggested that this was the case. I understood the Joint Committee simply to reject in paragraph 203 the substance of the suggestion in the draft Bill that there should be, for domestic intelligence services, an authorisation to bribe. There was no rejection, as I understand it, of the desirability of a prior authorisation procedure if it were appropriate to have a defence for acts of bribery in this context. Have I misunderstood this?

Lord Thomas of Gresford: Paragraph 13 of the Select Committee's report states:

"Even in the event that compelling evidence is brought forward demonstrating a clear need for the defences in clause 12(1)(a) and clause 12(1)(b), the use of these defences should be made dependent upon prior authorisation".

It is ambiguous. It could mean that you could not use the defence unless you had authorisation for it, but I do not think that was the intention. The other plain meaning is that you cannot use the defence unless there has been prior authorisation for the act of giving that is the subject of the particular offences. That is an ambiguous statement, but I think the meaning of the Select Committee is clear.

Lord Goodhart: The Joint Committee said that it,

There are, of course, several Members here who may take a different view. I understood that to mean that it was on the assumption that if there was a bribe it would have to be authorised, but there was no need for the domestic intelligence agencies to be granted an authorisation to bribe. So, the position would be that there would be no bribery.

That brings my contribution to an end. I beg leave to withdraw Amendment 22.

Amendment 22 withdrawn.

Amendments 23 to 25 not moved.

Amendment 26

Moved by Lord Goodhart

26: Clause 12, page 8, line 10, leave out paragraph (c)

Lord Goodhart: My Lords, I move Amendment 26 and speak to Amendments 28 and 30, which are in my name and that of my noble friend Lord Thomas of

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Gresford. These amendments would remove paragraph (c) from Clause 12(1). It exempts the Armed Forces on active service from liability for bribery.

This is an entirely new proposal. It was never put to the Joint Committee. Of course, the Joint Committee considered whether the power should be extended to the police and other similar organisations. It was never put to the Joint Committee and no evidence was presented to justify it. Why have the Government decided that the Armed Forces need the protection of the right to bribe under Clause 12? Do the Armed Forces go around bribing people in the way that bribery is defined in Clauses 1 to 6? Can we imagine any circumstances in which any member of the Armed Forces, acting in the proper exercise of their functions, is at risk of prosecution in the United Kingdom? I wait with interest the Minister's explanation of why Clause 12(1)(c) is thought to be necessary now but was not thought to be necessary when the predecessor of the Bill was presented to the Joint Committee. The provision is entirely pointless and Clause 12 would be better without it. I await the Minister's explanation.

Lord Thomas of Gresford: My Lords, there is a further curiosity about paragraph (c) in that it is a defence only if the member of the Armed Forces is engaged in,

So the basic concept is that we are dealing with the Army abroad.

However, it is a defence only to a relevant bribery offence that is defined as,

Under Clause 6, which refers to the bribery of foreign public officials, a member of the Armed Forces would not have this defence if he went along to the head of a village in Afghanistan, shall we say, who was holding a legislative, administrative or judicial position, or exercising a public function, and sought to bribe him.

Lord Bach: Before the noble Lord pursues this point, perhaps he will look at the definitions in Clause 6. He is right about Clause 6(1), which states:

"A person ... who bribes a foreign public official ... is guilty of an offence if P's intention is to influence F in F's capacity as a foreign public official".

However, Clause 6(2) states:

"P must also intend to obtain or retain (a) business, or (b) an advantage in the conduct of business".

Clause 6 is defined by business as opposed to any other consideration.

Lord Thomas of Gresford: What is "business"? Let us suppose, for example, that an Army officer wants to obtain something for his forces-food or whatever-and he goes to the head man of the village and gives him a bribe in order to obtain that particular item. That is business but he has no defence. He would have a defence if he was talking to a shopkeeper but not if he is talking to the head man of the village. It is an absolute nonsense and that is why I support the amendment.



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Lord Bach: The question that the noble Lord, Lord Goodhart, is really asking is why a provision for the Armed Forces was not included in the authorisation scheme of the draft Bribery Bill. It is a good question and I shall try to answer it. We intended to include a provision in relation to the functions of the Armed Forces, as I think our response to the Joint Committee's report makes clear. However, there were challenging timescales and, because of our wish to afford the Joint Committee as much time as possible to consider the Bill and our discussions with other government departments, we were unable to complete the necessary consultations in time. That is the reason why it was not included in the draft Bill. I regret that it was not, of course; it would have been much better if the draft Bill could have included what is in this Bill. However, the noble Lord asked for an explanation and that is the explanation I give.

I shall now deal with the arguments that the noble Lord, Lord Goodhart, has put forward.

5.45 pm

The functions of the Armed Forces are perhaps the most visible of the three categories listed in subsection (1) because of the ongoing operations in Afghanistan. All noble Lords will of course be very impressed by the way in which our Armed Forces are acting there. The purpose of the defence in relation to the Armed Forces is, we hope, clear. It is intended to avoid criminalising conduct which would amount to bribery by military personnel where it is necessary during active service-for example, when fighting an enemy, protecting life or property outside the British Isles, or in a military occupation of a country or territory overseas. We believe that it would be wrong to criminalise conduct undertaken, for example, to obtain information on the performance of an act that might be vital to the protection of life or property. We obviously owe a considerable debt to members of our Armed Forces on active service. We should not make their job more difficult than it is already by removing Clause 12(1)(c), which is what the amendment does.

Although the Constitution Committee clearly had other concerns, which we have debated this afternoon, it appeared readily to accept the need for the defence in respect of the Armed Forces, by stating:

"We raise no objection to the defence in clause 12(1)(c)".

Perhaps the noble Lord, Lord Pannick, can confirm that that is what the Constitution Committee meant by that phrase. I hope that the Committee will take a similar view, and believe that the Armed Forces are appropriately referred to in the Bill.

Lord Pannick: Can the Minister tell us whether there are any examples in recent years of prosecution authorities being asked to consider prosecution of a member of the Armed Forces for alleged bribery in the course of the performance of Armed Forces functions?

Lord Bach: I am not in a position to answer the noble Lord. There may or may not be examples, but I do not think that that takes away from the force of giving the Armed Forces the protection of this defence in the Bill.



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Lord Goodhart: This has been a very short debate, unlike our previous ones. I am not sure that it has enlightened much further what is a rather difficult and unclear situation. That is something which we will consider further, but, for the time being, I ask leave to withdraw the amendment.

Amendment 26 withdrawn.

Amendments 27 to 33 not moved.

Debate on whether Clause 12 should stand part of the Bill.

Lord Thomas of Gresford: My Lords, I have given notice of my intention to oppose the clause. I shall not go over all the areas that we have helpfully discussed this afternoon, but this is a very curious clause as a whole. I start by referring your Lordships to what the noble and learned Lord, Lord Woolf, said at Second Reading. He suggested that,

I think that these are just nods in the direction of the police, the Security Service and the Armed Forces without any particular utility. The learned Lord said:

At Second Reading I followed that point up.

The burden of proving this defence is on the person charged. This is not an evidential burden; he actually has to prove his innocence. That is not a very easy thing to do. He has to deal with the point that was raised by the noble and learned Lord, Lord Mackay, in relation, for example, to subsection (1)(b). He has to prove that he has properly exercised his function as a member of the Security Service, the Secret Intelligence Service or GCHQ. How does he do that? How can he, and those who are acting on his behalf, have access to the documentation that would be necessary for him to give that proof? How could he go into court and raise these issues in front of a jury except in the most exceptional circumstances of secret hearings? It is extremely difficult for him to prove these matters.

I have just referred to the nonsense in paragraph (c). It refers to,

However, the defence is not available to them if the bribe has been paid to anybody in any administrative position, so it is quite unnecessary. If there are, for example, secret matters to be conveyed, they should not be conveyed to the court or to the defence team but to the person who takes the decision whether or not to prosecute; in other words, the Director of Public Prosecutions, the director of the Serious Fraud Office or the director of HMRC. As the noble and learned Lord, Lord Woolf, said, these are the people to whom the representations can be made before the decision to prosecute is brought forward. That is the protection for individuals who are part of a law agency, the security services or the Armed Forces. That is where it should cut in, not in charging somebody-with all the publicity that that involves and all the trauma

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of a trial-who has in effect just been doing his job, and on whom all the burden of defending himself will be placed.

The noble Lord has told us that he will consider the result of what we have discussed this afternoon. When he does so, will he ask himself whether this provision is necessary? That is the first question. If it is necessary, will he tell us on Report why it is necessary to go through the whole procedure of a trial for a defence to be raised with the burden of proof on the defendant? Why is that necessary? Secondly, will he deal with the points that have been raised this afternoon not merely in relation to the police but the other parties referred to in paragraphs (b) and (c)? This measure is just a nod towards those institutions and should be withdrawn. I hope that the Minister will do so without any further delay.

Lord Mackay of Clashfern: My Lords, I wonder whether the idea that nods should be outlawed is necessarily all that bad in the circumstances. In 1989, when the security services were first acknowledged, the view was taken that where the law was being breached in relation to property the Secretary of State should give an authorisation. There is not much doubt that, apart from that, the prosecutor would be informed of the situation and it would be unlikely to give rise to a prosecution. However, it was thought right as a matter of policy that the Secretary of State should be involved. Then there would be no question of prosecution at all, and the person in question would not have breached the criminal law.

I wonder whether it would not be wise to think about that for this clause because there is no doubt that if the security services or the Armed Forces are in danger of breaching, for example, the provisions of Clause 1, they should be protected by a system that takes responsibility for that at an appropriate level-either through RIPA or the Secretary of State.

The idea of simply blotting this out altogether is not in accordance with such thinking as there was in 1989. It was right to acknowledge that things of this kind could happen, but that the Secretary of State had to authorise them. That was the safeguard and ensured that what happened was properly in the national interest. It was not a question of leaving it to the prosecution. The question of whether there had been interference with property rights could have been addressed in 1989; Section 4 of the 1989 Act has that particular provision in it. Certainly the view taken at the time was that it was not right for the person in question to be treated as potentially a criminal, subject to the prosecution not going ahead for reasons of public policy. So far as these provisions are necessary, and that is what the Minister has been justifying to us this afternoon, it is right that they should not be offences at all. They should be taken out of that category by the relevant authority at the highest level-depending on the nature of the situation, either through the RIPA system or the Secretary of State.

From what I have heard from the Minister, this is something to be justified. I am not dealing with the detail of which authorities or services should be included, but insofar as it is right to include the services, I believe that the 1989 wisdom should prevail.



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Lord Pannick: I agree respectfully with the noble and learned Lord that insofar as there is a need for any of these subsections, prior authorisation is the route forward. I say that because the Minister emphasised earlier in our discussions that the Government are anxious to ensure transparency and certainty. I would suggest that a prior authorisation procedure through the Minister, or if he is unavailable a very senior official, would achieve those objectives. Such a procedure would do so far better in this context than leaving matters to assessment by a prosecutor, who will consider necessity after the event.

Lord Henley: My Lords, perhaps I may intervene briefly. We can put it simply if we say that during the course of our various debates today some concerns, to say the least, have been expressed about Clause 12. We are grateful for the fact that the noble Lord has promised in particular to reflect on Clause 12(1)(a), the paragraph about which we have the most concern. In my view, there are slightly fewer concerns about subsections (1)(b) and (1)(c). We are glad that the Minister will consider bringing forward something before Report stage, which is now just under three weeks away, so he has a certain amount of time to consult colleagues in the rest of the Government.

He also gave a firm promise to produce the Government's response to the Select Committee's report, which will in effect be part of the Government's reflection on the general concerns about Clause 12. Again, we are grateful that we now have a firm promise that we will have that before Report. At that stage, we would want to consider what was appropriate about that clause. On this side, our concerns were more about Clause 12(1)(a) than about 12(1)(b) or 12(1)(c).

6 pm

Lord Bach: My Lords, before I try to answer the Motion that the clause not stand part, I thank all noble Lords for their part in today's discussions on this difficult clause. They have been helpful for the Government, and we will go away and consider what has been said. I will try to keep my remarks fairly brief.

We argue that the offences created by the Bill will capture instances where members of the three services recruit and reward agents and contacts both in the UK and overseas. In the absence of the defence in Clause 12, service staff and those acting on the services' behalf will be exposed to potential liability for carrying out functions bestowed on them by Parliament in pursuit of requirements set by the Government.

All three services make use of agents and confidential contacts to assist them in carrying out their statutory functions. That can range from the long-term deployment of agents in highly sensitive positions to engaging a member of the public to provide one-off assistance to a terrorism or other investigation or operation, within the services' statutory functions.

The services-I choose my words here with care-will often need to offer financial or other inducements to secure such assistance, or will wish to reward individuals in recognition of the value of the assistance they have provided. If, for example, an individual acting in the

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course of their employment agreed to a particular action that would put them in breach of their duty of trust to their employer because they were asked to do so by one of the services in the interests of national security, perhaps even at some personal risk, it would not be considered untoward for the service concerned to make a gift or payment to that individual to reflect the service's appreciation for their support and assistance. I hope and think that it is agreed that such individuals should certainly not face criminal liability as a result of their willingness to assist.


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