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If either of these amendments was carried, we would end up with both models being applied at the same time. We do not believe that that would make sense either in principle or in practice. Both amendments retain the defence but augment it with an authorisation requirement in respect of the conduct. That would create a scheme that is much more onerous than either the defence model or the authorisation model, which Parliament previously approved as appropriate models for addressing this issue.

As the scheme would remain linked to a defence, the existence of the prior authorisation would not be conclusive. It would not, unlike the authorisation scheme proposed in the draft Bill, mean that no offence was committed. A person whose conduct was authorised could still be prosecuted and, in order to avoid guilt, would have to establish that the conditions of the defence applied. This is precisely the same process

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with the defence model in the Bill. The authorisation requirement would add an unnecessary and unwelcome extra layer of bureaucracy into the process for little obvious benefit.

7 pm

Lord Elystan-Morgan: My impression is that the number of prosecutions each year for the past four or five years in relation to bribery has been very limited. There have been something of the order of a couple of dozen each year. In order that one can judge the scale of the problem that we are talking about, can the Minister say how many of those involved the armed services or the intelligence services?

Lord Bach: I thank the noble Lord for his question, although I cannot give him the figures. I do not think that it is anticipated that there will be many prosecutions in court under Clause 12 if it becomes law, although I am only surmising for the future.

Lord Thomas of Gresford: The noble Lord said that if a person was authorised he could still be prosecuted. Amendment 30 states:

"The Secretary of State shall not give an authorisation unless he is satisfied that the person's conduct is necessary for one of the purposes set out in section 12".

Under the amendment, the Secretary of State would authorise the defence, in effect, and would have shown that the conduct was necessary. Therefore, unless the Secretary of State stands in the dock with the defendant, how could the person be prosecuted?

Lord Bach: As I understand it, under Clause 12, which would also be in existence under the terms of these amendments, the prosecutor would be able to look at the facts and decide whether the defence in Clause 12 was made out or whether the matter should be prosecuted. That is how I think it would work. If that is not how it would work, would it not be up to the Secretary of State effectively to decide whether someone was to be prosecuted for a criminal offence? That matter has been debated around the House today.

Lord Thomas of Gresford: I think that prior authorisation is behind the amendment. If there is prior authorisation to carry out the necessary functions of the secret service by bribing someone, how could the DPP afterwards say, in the face of a written authorisation from the Secretary of State, that he or she is going to prosecute that person? It is not possible.

Lord Bach: I have given the answer.

Lord Mackay of Clashfern: The Minister has already dealt with the situation if someone is prosecuted. There is no doubt that, at least in some of these cases, the information necessary for the defence will be highly sensitive. As has been said, it is unthinkable that someone prosecuted would be able to marshal and exhibit these details. The point about our authorisation amendment is that the Secretary of State would deal with that situation. If he deals with it, it will not be

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necessary for the defence. We do not exercise the dispensing power, although we were accused of doing so, because we say that, before the defence can be used, the matter has to be necessary. However, there is still the possibility of that arising.

Lord Bach: My Lords, more important, prosecuting conduct that has previously been authorised by a Minister, whether specifically or on the basis of a class authorisation, and which is necessary conduct, as the amendment would require, creates huge difficulties if the prosecution is on the basis that the conduct did not, in the view of prosecutors, turn out to be necessary. That raises the prospect of any person so charged being able to challenge the prosecution as an abuse of process, given prior authorisation. That would be the consequence, which we do not think is a satisfactory solution to this issue.

Lord Mackay of Clashfern: How will the person defending himself be able to get the necessary information about the activities of the secret service to lay before the court?

Lord Bach: My Lords, the matter would go, first, to a prosecutor, who would decide, bearing in mind what the clause says, whether there is a defence under the Bill. The flaw in the amendments lies in the fact that the authorisation and the defence would be merged, which would be extremely confusing. If a defendant finds himself eventually in the dock, which we think would be an extremely rare occasion, he has to be able to conduct a proper defence and the court will have to find ways of allowing him to do that.

Lord Lester of Herne Hill: Am I right in thinking that the one thing that cannot happen is for there to be a blowing hot and cold? In other words, once an authorisation has been made, provided that the conduct falls within the authorisation, there is no question of a change of mind subsequently so that the person who has relied on the authorisation finds himself or herself in the dock.

Lord Bach: There may be an issue if the authorisation is of an extremely wide class nature. If the prosecutor felt that the defendant had not acted within the scope of that authorisation, the prosecutor would have to look at Clause 12 to see whether there was a defence.

Lord Lyell of Markyate: I agree with the noble Lord, Lord Lester, who has raised an important point. It would almost certainly be quite unconscionable to prosecute in those circumstances. No doubt the Minister will reflect carefully on that.

Lord Bach: It would depend on how wide the authorisation was. That is the point. If it was a class authorisation on a very wide basis, it may not be impossible for the prosecutor to argue, at least, that the conduct of the accused was such as not to bring him within the authorisation. This is the problem with prior authorisations.



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Lord Lester of Herne Hill: I agree, but is that not because there would then be the vice of legal uncertainty in the criminal process, which would be unacceptable? That is the vice of an overbroad authorisation.

Lord Bach: The noble and learned Lord, Lord Woolf, said that there was no restraint or supervision under the current scheme. I do not agree. The fact that a defence is provided rather than an exemption, for example, means that the necessity for a payment can be tested by the ultimate arbiter-namely, the courts. As in any case referred to them, prosecutors will, as they always do, independently review the evidence and take into account whether the defence was satisfied in deciding whether the evidential test to prosecute is met.

I remind the House that the intelligence services are subject to a high level of scrutiny, not only by Ministers but by the intelligence service commissioners, the intercept commissioners and other formal scrutinising bodies. Our solution of having a defence in Clause 12 is the most practical, case-specific way of dealing with this issue. There are difficulties with prior authorisations, as they are, in specific terms, unworkable and, in class terms, too general-they do not do anything other than act as a fig leaf for ministerial accountability-unlike the defence in Clause 12, which is specific and can be dealt with by the prosecutor and, if necessary, by the court. To augment the two and put them together, as is proposed in the amendments, would be the worst of both worlds.

For those reasons, I invite the noble Lord, Lord Pannick, to withdraw Amendment 18 and not to move Amendment 30, and I invite the noble Viscount, Lord Colville, not to move Amendments 22 and 31. I must inform the House that I cannot give any comfort that we will come back with an alternative proposal at Third Reading. I reiterate what I said in Committee: the Government attach critical importance to Clause 12. It is for those reasons that I invite the noble Lords not to press their amendments.

Lord Pannick: I thank the Minister for his careful consideration of this difficult matter and for his courtesy and assistance in providing relevant information to me and to other noble Lords in a meeting earlier this week. I also thank noble Lords who have spoken in this valuable debate.

The core of the issue is that the Minister and the Government are, with respect, not addressing the mischief that is to be found in Clause 12 as currently drafted. It leaves it to the intelligence services and to the Army to decide when an act of bribery by the state is necessary, subject only to the cumbersome weapon of a criminal prosecution after the event. As the noble Lord, Lord Goodlad, pointed out, that will provide little comfort to the officer of state who is conducting the act of bribery.

The relevant amendments-those in my name and the names of the noble and learned Lords, Lord Mackay and Lord Woolf, and those in the name of the noble Viscount, Lord Colville of Culross-seek simply to identify whether there is some legal means for limiting in advance the circumstances in which the

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state may itself carry out an act of bribery. The search for that legal means has commanded some degree of support in the House today. For my part, I am certainly not wedded to any particular wording. I would be happy-as I am sure other noble Lords who have spoken would be-to discuss with the Government in the next week any wording that builds in a degree of prior authorisation or consideration of the circumstances in which acts of bribery by the state are acceptable, without offending, of course, any constitutional proprieties and without causing practical problems.

The objections raised from the Liberal Democrat Benches are, with respect, misguided as to the effect of our amendment for the reasons given, in particular, by the noble and learned Lord, Lord Mackay of Clashfern. In any event, if the objection from the Liberal Democrats is to the width of a class authorisation, surely they should argue for a tougher authorisation procedure than our amendments propose and not accept a system in which there is no prior authorisation whatever.

We have had a valuable debate. In the hope that the noble Lord the Minister and the Minister in another place will read the report of this debate and consider it, as well as today's further report by your Lordships' Select Committee on the Constitution, and in the hope that they might reflect on whether they can find some means of building in a procedure by which the acceptability of acts of bribery on the part of the state can be considered in advance and not exclusively by the criminal process after the event, I beg leave to withdraw the amendment.

Amendment 18 withdrawn.

7.15 pm

Amendment 19

Moved by Lord Bach

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

Lord Bach: My Lords, as I attempted to explain in the debate on the previous group of amendments, the purpose of the defence in Clause 12 is to ensure that the authorities concerned are able to carry out their vital public functions without falling foul of the criminal law where the offer or receipt of a financial or other inducement is necessary for the proper exercise of their legitimate functions-for example, to obtain critical intelligence or assistance in the course of their operations.

In Committee, noble Lords quite rightly pressed the Government to justify such a provision, and we have also been conscious of the concerns raised by the Constitution Committee in its initial report on Clause 12. I indicated in Committee that I would reflect on the debate and, in particular, on the wide nature of the definition of a law enforcement agency. As the Constitution Committee noted, this extended beyond the police to other law enforcement agencies such as Her Majesty's Revenue and Customs and the UK Border Agency, as well as local authority, trading standards and environmental health officers.

In responding to the debate in Committee, I indicated that we would examine whether the definition of a law enforcement agency could be narrowed. We have gone

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one better. After careful reflection on the powerful arguments made in Committee, and following further consultations with the Association of Chief Police Officers, SOCA, HMRC, the UK Border Agency and the Scottish Government, we have concluded that the defence for law enforcement agencies is not absolutely essential to enable them to operate effectively in the fight against serious crime. Government Amendment 19, together with consequential Amendments 24, 26 and 28, would therefore remove subsection (1)(a) from Clause 12.

The removal of the defence as it would apply to those performing functions of the law enforcement agencies results in a much more narrowly focused provision. We remain convinced, however, that the defence is still required for the proper exercise of the functions of the intelligence services and the Armed Forces, which operate in a very different context from that of the police and other law enforcement agencies. In their case, reliance on prosecutorial discretion not to bring criminal charges would not provide appropriate legal certainty for those concerned.

I can deal briefly with our Amendment 27. Clause 12(2) lists the offences for which the defence would be available. These are primarily the offences of bribing another person in Clause 1, except where it would be an offence also under Clause 6, and the offence of being bribed in Clause 2. This technical amendment adds to those already listed an offence committed by aiding, abetting, counselling or procuring the commission of one of those mentioned offences. We always intended for this form of liability across the UK to be covered by Clause 12(2)-as is made clear, I hope, in the Explanatory Notes-but the amendment puts it beyond doubt. Having explained as best I can the government amendments, I look forward to hearing from other noble Lords who have amendments in this group. I beg to move.

Lord Goodhart: My Lords, we on these Benches welcome Amendment 19. It is absolutely right to have removed the law enforcement agencies from the Bill.

I shall speak to Amendments 20, 21, 23 and 25, which limit the effects of Clause 12. My noble friend Lord Thomas of Gresford will speak to Amendment 29, which proposes the total removal of Clause 12-which is perhaps one way of getting rid of the difficulty that has kept us going for the past hour.

Amendment 20 deals with the powers of the security services to commit acts of bribery. The functions of the security services under the Security Service Act are threefold: first, ensuring national security; secondly, protecting the economic well-being of the United Kingdom; and, thirdly, the prevention or detection of serious crime. The effect of this amendment is to limit the functions of the Security Service to the first of those three purposes; that is, ensuring national security. I would have no problem in accepting the extension of legitimate functions for the security services to cover the prevention of serious crime, but that did not get into my amendment.

However, there is no justification for allowing bribery to be used for the second purpose of the security services; that is, protecting economic well-being. The

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Government might well be interested to know about, let us say, Chinese plans to intervene in markets which had up to then been dominated by British businesses. Inside information about Chinese plans and whether they might be damaging to the United Kingdom economy could well be useful to the United Kingdom Government, but they present no threat to national security. The Security Service should not therefore be entitled to pay bribes for information given by some member of this Chinese team. Bribery is after all, as I think we all recognise, a devastating disease in many parts of the world, and it should be used only for national security and the prevention of serious crime. It should not be used where the information is a matter only of preventing economic damage. As chapter 12 of its report shows, the Joint Committee believes that, even if authorisation can legitimately be granted to the secret services to commit bribery, it should be limited to the protection of national security and the detection or prevention of serious crime.

I move on to Amendment 21. The equivalent clause in the Bill presented to the Joint Committee permitted the security services, and the security services only, to bribe when necessary for their proper functions. The Joint Committee proposed unanimously the removal of that clause. When this Bill was introduced to Parliament, the legal authority for bribery was not only retained for the purposes of the Security Service but extended to law enforcement agencies and the Armed Forces when on active service. Government Amendment 19 will remove law enforcement agencies from the list of those permitted to bribe, which we welcome, but it does not remove the Armed Forces.

It has never been explained why the Armed Forces were added in the first place. I can imagine that the Government have in mind the paying of members of the Taliban to change sides and problems similar to that. I cannot imagine that there would ever be a prosecution, let alone a conviction, for that, so I invite in relation to Amendment 21 the Minister to explain why it is thought necessary to give the Armed Forces a right of bribery and why, if it was important enough to require this legislation, the issue was never raised in either the draft Bill or the evidence presented to the Joint Committee. Amendments 23 and 25 are consequential on Amendment 21.

I should give advance warning that, unless we hear satisfactory answers to the issue that I have raised under Amendment 20, we are likely to call a vote, not in the expectation of winning-although we would of course like that-but to make perfectly plain our concern about the way in which the power to legitimate bribery has been overdone.

Lord Henley: I intervene briefly to say to the Government that we welcome their amendment to delete subsection (1)(a) from Clause 12, which goes a long way to meeting a great many of our concerns, particularly following the meetings that the Minister was happy to arrange between us and his colleagues in the department.

I have only one question to put to the Minister, which he possibly partially answered in his opening remarks. "Law enforcement agency" includes a wide

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number of bodies, among them the police. I think that he would accept that paying for information can be a useful weapon in the fight against crime. Will the police have from now on to rely entirely on prosecutorial discretion to avoid prosecution on occasions when they find it necessary to offer bribes for what might be termed "legitimate purposes"?

7.30 pm

Lord Williamson of Horton: Amendment 19-bravo! Amendment 20 would leave out any function of the intelligence services and limit the possibility to functions relating to national security and the prevention of serious crime. I drew attention to the words "any function" when the matter was discussed in Grand Committee. It is an important point and, as we are likely to have a vote on it, it would be very helpful if the Minister could indicate the extent to which operationally it is possible for the intelligence services to distinguish between these functions. On paper, it is quite easy to distinguish those relating to economic well-being, as they are linked perhaps to the prevention of serious crime and the other elements. It would be helpful to know whether the Government's position is that they cannot be easily differentiated.

Lord Archer of Sandwell: My Lords, I had not previously intervened on your Lordships' discussion on this Bill and I would have been very reluctant to do so at this stage if a matter of some importance had not been drawn to my attention. I accept that if I had been more assiduous I would have grasped it earlier, when I could have discussed it with the noble Lords, Lord Goodhart and Lord Thomas, and with my noble friends on the Front Bench.

While we are on the subject of Amendment 20, I advance two propositions, which your Lordships may think are self-evident. The first is that this country relies very heavily on the collection and processing of intelligence for its national security and for dealing with serious crime and terrorism. The work of the intelligence services may save the lives of many thousands of people. The second proposition is that the effectiveness of those who process the intelligence depends entirely on not letting those under surveillance know either that they are under surveillance or what the methods or capabilities are of those who carry out the work.


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