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We have to strike the balance between exemptions from the criminal law on the one side and catering for the needs of those who undertake very important functions on behalf of the public on the other. We believe that the balance is struck by Clause 12.

I take comfort from the fact that noble Lords have questioned the need for Clause 12 on the grounds that this issue can adequately be dealt with through the exercise of prosecutorial discretion. That makes the point that it is recognised that there will be occasions when the fight against serious crime, the protection of national security or the safety of our Armed Forces justify certain organs of the state committing acts of bribery. However, that approach fails to recognise that it is clearly in the public interest for the services to operate on the basis of a secure legal footing. Members of the services should not be placed in a position where the proper performance of their duties puts them in breach of the criminal law. That would place officers in an invidious and unacceptable position. We think that the Bill provides an opportunity to regularise the position by providing an appropriate mechanism for removing criminality from this kind of conduct.

I ask those noble Lords who might advocate reliance solely on prosecutorial discretion to put themselves in the place of the police officer, the intelligence service operative or the Army officer engaged on active service, all of whom are exercising important functions on behalf of the public. Such a person may be faced with a situation where offering a bribe is necessary in the circumstances, at the same time as knowing or believing that to do so would be a criminal offence. Relying on prosecutorial discretion not to bring criminal charges against individuals for actions done as part of their statutory functions does not provide sufficient certainty for staff, agents or members of the public who may be concerned about liability.

There is also the risk for operational security that, in the absence of a defence, an in-depth investigation by the police would entail. This would be an invidious position for a person acting in accordance with statutory functions and in the public interest. To say to such a person, "Don't worry. Should it come to it, I'm sure the prosecutor can be relied on to exercise their discretion not to prosecute", does not sound, frankly, as though it provides sufficient assurance. Nor does it address the fact that the conduct would ostensibly remain criminal despite no prosecution proceeding. There may be cases of insufficient evidence, or it may not be in the public interest to proceed. The important point is that the approach provides insufficient comfort.

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The impact on morale would affect not only service staff but those on whom they rely to assist them in carrying out their statutory functions.

The recruitment of agents in highly sensitive positions is not assisted when there is no assurance that they will not face independent investigation and prosecutorial scrutiny by doing what they are asked to do. Equally, criminalising their behaviour would act as a sufficient disincentive for the majority of members of the public who would instinctively want to respond positively to a request for assistance from one of the services. This would risk significantly undermining the good will and support of the public, on which the services rely. Such individuals, who are exercising important functions on our behalf, have the right to expect greater certainty about where they stand in the event that the effective discharge of their duties necessitated conduct which would amount to an offence under the Bill. The defence in Clause 12 will make clear that should a person exercising such functions ever find himself or herself charged with an offence, he or she would have a defence that could be put before the court.

Crucially, too, Clause 12 will assist independent prosecutors in deciding whether proceedings should be brought. It contains a clear statement as to the factors and conduct which would be subject to the criminal law. We do not seek to hide the fact that certain arms of the state may need to offer financial or other inducements that would amount to a bribe to carry out their functions effectively. Clause 12 makes the position entirely transparent.

The alternative suggestion, put forward with great clarity by the noble and learned Lord, Lord Mackay of Clashfern, is that we might have an authorisation scheme to deal with this issue. When the Government proposed an authorisation scheme in the draft Bill, the committee chaired by the noble Viscount basically threw it out. It did not agree with it. It is not for me to say whether it did not agree with the principle or with the authorisation scheme that was proposed; I can only read what is in the document. There are problems with an authorisation scheme, but the proposal in draft Clause 13 was that an authorisation might, in particular, relate to one or more specified acts or omissions; be limited to one or more specified persons; be subject to specified conditions; and would cease to have effect at the end of a period of six months, starting on the day on which it was given. In other words, the authorisation would be extremely wide, would cover a whole class of persons and activities, and would, in our view, be much too broad.

The alternative to that would be to have specific authorisation under the Bill for every potential act of bribery by a member of the security services. In practice, that is not a very sensible thing to have to put before Secretaries of State. It would have to be done a huge amount and very regularly, and would take up a lot of the time of a conscientious Secretary of State.

Baroness Whitaker: My recollection is that the first Joint Committee on the draft Corruption Bill threw out the authorisation idea, not on the grounds of authorisation per se but because the way it was presented was too broad and included the national economic

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interest. I do not think there was an explicit rejection of the concept of authorisation for the actions of the security services in the interests of national security.

Lord Bach: I am grateful. I cannot argue with those who served on the committee. I can refer only to the first line of paragraph 203 which states:

"We heard no persuasive evidence of a need for the domestic intelligence agencies to be granted an authorisation to bribe."

On the face of it, that seems a clear-cut view of the committee.

Lord Mackay of Clashfern: The passage the noble Lord has just read out shows that the noble Baroness, Lady Whitaker, is correct. The basis upon which authorisation was sought was too broad in the opinion of the Joint Committee. The passage the noble Lord has just read-I do not have the report in front of me at the moment-suggests that it thought the basis upon which authorisation was sought in the draft Bill was too wide. Authorisations are well established in statute and in statutory provisions relating, for example, to the security services. I would have thought them to be the best way forward in this difficult area-assuming, of course, that there is a need for exemptions from the bribery provisions in respect of such services.

Lord Bach: I wonder whether there is some confusion between the 2003 Joint Committee, which thought that the authorisations requested were too wide, and the-

Baroness Whitaker: That is the one I was referring to.

Lord Bach: That is the one to which my noble friend Lady Whitaker referred, whereas I am looking at the Joint Committee that reported last year. It is from that committee's report that I quoted paragraph 203.

Of course we have to consider the authorisation path but we think that it would too burdensome, in the best sense of that word, for a busy Secretary of State if they are to do the job properly. It would take up too much of his or her time to have to make decisions on every possible case of bribery under Clause 1. A better, more transparent way is to put the offence in the way we have and to have the defence in Clause 12. When a prosecutor looks to see whether a prosecution should or should not go ahead, he will consider the defence in Clause 12 and then make his or her decision. Those are the grounds on which we, on balance, have come to the view that our Clause 12 is to be preferred.

I know that its existence has tempered what has otherwise been a warm welcome for the rest of the Bill. I have to remind myself that the Bill has received a warm welcome generally. Indeed, I think the noble Lord, Lord Williamson, described it as a "love fest" or something like that, at Second Reading. Today has been a strange love fest but it is perhaps good for the soul. However-this is a serious point-in relation to the Bill as a whole, the Committee should be in no doubt about the importance that the Government attach to this clause. We acknowledge that the definition of a law enforcement agency is potentially too wide

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and I have already undertaken-I do so again-to look at that aspect of the Bill. We remain firmly of the view that the defence is needed and fully justified. Today, inevitably, the clause will be agreed, but I hope I have made noble Lords more content about the existence of Clause 12.

6.15 pm

Lord Thomas of Gresford: The Minister talked about there being a mechanism in the Bill that would prevent there being a criminal offence. I would like him to go away and think of this, if he would be so good: there are two people in the dock; one of them is a police officer who has paid money to the other person in the dock. When it comes to trial, the police officer produces his defence that he was exercising a proper purpose and is acquitted. The second person does not have that defence. I am sure that the Minister would agree that the second man would not automatically become not guilty simply because the police officer had succeeded in proving his personal defence. The existence of bribery therefore continues and the second man is convicted. That is why I want the Minister and his team to think about this.

Lord Bach: We have thought about this issue. Our view is that the co-accused standing in the dock, the person who received the bribe, has the defence in the same way as the person who offered the bribe.

Lord Thomas of Gresford: It does not say that in the Bill at all. He is not a member of the security services or any other agency. If that is the case, surely the Minister ought to make it absolutely explicit in the Bill that the co-accused, the person who receives the money, is not guilty if the police officer, for example, succeeds in his defence.

Lord Bach: If the noble Lord would be good enough to look at Clause 12(1), it is a defence for a person charged with a relevant bribery offence to prove that the person's conduct was necessary for paragraphs (a), (b) and (c). That can apply both to the person who gives the bribe and the person who receives it. Indeed, there is reference in the Bill-I am grateful to those behind me-which defines a "relevant bribery offence". It means,

which refers to the receiver of the bribe.

Lord Thomas of Gresford: My Lords, I am surprised that the person standing in the dock has to prove that his conduct in receiving the money was necessary for the proper exercise of any function of the security service. That seems an extremely difficult way of putting it. No doubt the Minister would like to think about the wording of that; it should be made a lot more explicit than it actually is. I had assumed throughout our discussions this afternoon that this defence was open to a member of the particular organisation referred to. If I am wrong in that, I am delighted to hear it.



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Lord Bach: Why, in that case, would Section 2 be mentioned at all?

Lord Thomas of Gresford: Because the bribery might be made to the police officer for the performance of his functions. I do not know; it clearly needs to be looked at carefully.

We will no doubt welcome a discussion with the Minister to make what we have always said is a good Bill better through the clarification of this. The noble and learned Lord, Lord Mackay, has pointed out that it is far better for there not to be a bribery offence committed in particular circumstances. If a person has authority to do what he does, he has not committed a criminal offence. That has a knock-on effect for the person who is standing in the dock with him when the trial takes place. No bribery offence is committed.

Let us take the situation where the first police officer successfully runs the defence and the person

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standing alongside him does not persuade the jury-and remember that the burden is on the defendant-that that defence is open to him. All kinds of problems can arise out of the wording of this clause and I will no doubt return at Report to say that we should do without it.

Clause 12 agreed.

Clauses 13 to 16 agreed.

Schedules 1 and 2 agreed.

Clauses 17 to 19 agreed.

Bill reported without amendment.

Committee adjourned at 6.21 pm.


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