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Clause 12 presents a problem at the stage when there is a prosecution. If, as some noble Lords suggested, there never are any prosecutions, the question may not arise-but it rather raises the question, "Why create an offence?", if it is never going to be prosecuted. If there is a prosecution and the defence relies on Clause 12, it will have to establish that what was done was necessary for any function of the security service. That can be done only if it identifies the function; it will need to describe it and say what is entailed by processing it and say what is done by those who exercise it. If the prosecution wished to challenge the defence, it would need to ask questions about the nature of the function, who exercises it and what they will have to do to exercise it. If the jury has to decide on the defence, it will have to have explained to it the nature of the function, what it entailed and what was done under it. That is going to be very difficult without disclosing just the very things that the security agencies are

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desperate not to have widely known. Of course, if something emerges once-if a secret emerges-it will no longer be a secret. You cannot close the door afterwards or reverse the process, and a great deal of damage may have been done to the capabilities of the agencies. It will require a very wise and strong judge to hold the balance between questions that are necessary for a fair trial and the security of those who have to carry out these very difficult capabilities. I can see that those who take part in the case will be treading on eggshells. If they make a mistake once and if, once, something emerges that is very damaging to the services, it will be too late to reverse the operation.

I recognise the need for Clause 12 and understand that the security services are dealing with personnel who have very difficult jobs. They want to be assured that they will not be convicted of a criminal offence, so all our discussions today have been directed to that point. It will not be enough to say, "Oh well, we never know quite what the outcome of the proceedings will be, but you probably won't be convicted". They will need to be assured that they are not in danger of conviction, which would have to be achieved either by Clause 12 or by the other safeguards suggested in the course of the debate. For that reason, I recognise the need for Clause 12, unless some of the other amendments find their way on to the statute book. It would probably be possible to keep the evidence sufficiently unspecific for the major damage to the agencies to be avoided but, if there were some amendment that would avoid that difficulty, I would be minded to support it, and I shall listen with great interest to what follows in this debate. The suggestion made by the noble Lord, Lord Goodhart, in Amendment 20 is likely not to modify the situation but to exacerbate it. If you circumscribe the functions that will qualify for the defence, it will be necessary to ask even more questions. The details will become more detailed. I should have thought that that answer would cause a great deal of problems to our courts. For that reason, I venture to draw attention to this problem for your Lordships.

Baroness Whitaker: My Lords, like the noble Lord, Lord Williamson of Horton, I ask a question of my noble friend in connection with Amendment 20. I am concerned about the pursuit of a national economic well-being. I have looked at the further report of the Constitution Committee, published today, and helpfully referred to by my noble friend. I assume that it is now content that economic well-being is properly within the scope of the defence. Nevertheless, I return to Article 5 of the OECD convention, which says that in the course of investigation and prosecution of the foreign public official, the state's party,

I would be grateful if my noble friend would confirm how Clause 12, as currently drafted with the government amendment, which I support, complies with the OECD convention.

Lord Thomas of Gresford: One concern that we have had on these Benches is with Article 5 of the OECD convention-namely, that the national economic health of the country cannot be sustained by bribery. That is one reason why we have sought to limit in our

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amendment the right of the security services in the interests of national security. The security services are charged not only with national security but with the national economic well-being of the country.

The more that one looks at the clause, the more one realises how impossible it would be for a person charged with an offence to adduce it before a jury. The noble and learned Lord, Lord Archer of Sandwell, made the point a moment ago that there would be no ability on the part of the defendant to go into the security services and obtain the material that he would need to sustain his defence. Further, in sustaining his defence, unless the hearing was completely in camera-I have had experience of that where security was involved-then what he was saying about the function of the security services would be there for the jury to disseminate, and if it were not in camera it would be for the press to listen to and disseminate as well. It would be almost impossible for a person to sustain that defence where the security services were involved.

The immunity of the Armed Forces when engaged on active service is limited to actions,

How can a person charged at the Old Bailey conceivably put together a defence to show that his conduct in bribing someone in Afghanistan was necessary for the proper exercise of a function of the Armed Forces? Who can he call? Where are the documents? Where are the witnesses? It is just impossible for that to be sustained.

The problem that the Government want to solve is how to give assurance to security services and Army personnel that they will not be prosecuted, but I do not think you can do it with this Bill. You certainly cannot do it by having a defence of this sort. You might have a simple Clause 12 setting out an authorisation scheme, but not related to this sort of artificial defence. You could have something that said, "The Minister may authorise", but the Government say that that is impractical and cannot be done.

So what is the way to give assurance to security service and Army personnel that they will not be prosecuted for bribery? I have sat here and thought about it. To my mind, the only conceivable way to do it is to have firm prosecutorial guidance set out for the Director of Public Prosecutions or the Serious Fraud Office director to advise their staff that prosecutions under the Act will simply not happen where the security services or the Armed Forces are performing their functions properly-in other words, a strong direction to the prosecutor not to bring proceedings in the first place.

What are the advantages of that approach? The main advantage is that if there is some secret material involved, that can be communicated to the Director of Public Prosecutions or the other agencies without any publicity. If he is in doubt about whether a person should be prosecuted, he can contact the security services or the Army and say, "In his interview, the defendant said that he was told by Colonel So-and-so to go and bribe the head man in a village in Afghanistan for a particular purpose. Is that correct?", and in private the colonel writes back and says yes, that is

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correct, or no, it is not. At least the decision is taken without all the publicity to which the noble and learned Lord, Lord Archer, referred in his speech.

This defence is impossible to run on a practical level without compromising the functions of the security services. It cannot work. An authorisation scheme is the obvious answer-but the Minister says that it is impracticable. How much bribery is going on, for heaven's sake? How much are we concerned with? If there is a lot of bribery going on, the Minister will no doubt give us some figures about what it is adding to the national debt. One cannot imagine, though, that there is so much involved that it is impossible to get a straightforward authorisation scheme such as we have, as the noble and learned Lord, Lord Mackay, has pointed out, with regard to the security services elsewhere. If that is impractical, then it is only by strong direction to the Director of Public Prosecutions and other directors that this problem can be solved and the people concerned can be given the assurance that they need. That is why I shall be moving in due course that this whole clause should be struck out, not because I do not see that there is a problem but because this is not the solution.

7.45 pm

Lord Bach: My Lords, Amendments 20, 21, 23, 25 and 29 offer us two alternatives. Amendment 29 would strike out the whole clause while the other amendments would limit the defence as it applies to the intelligence services and deny the defence to those pursuing the legitimate functions of the Armed Forces. Let me try to deal with the broader proposition first-in other words, Amendment 29.

In our judgment, it is important that we provide a defence for the proper exercise of the functions of the intelligence services and the Armed Forces engaged on active service. There will be occasions when the intelligence services and the Armed Forces have to engage in conduct that amounts to an offence under the Bill, not under Clause 12 but under other clauses. That will be the case whenever a financial or other advantage is used with the intention to induce or reward the improper performance of a relevant function of a public nature or any activity connected to a business or employment. It is important that the individuals tasked with carrying out these important functions can do so on the basis of a secure and transparent legal footing.

Some noble Lords have argued that this concern can equally be addressed through the exercise of prosecutorial discretion-the noble Lord, Lord Thomas, suggested that just now-and the public interest test. We have to say that such an approach would not provide the necessary legal certainty in the context of the work of the intelligence services and Armed Forces. Individuals who exercise these important functions on behalf of all of us, of our country, have a right to expect appropriate legal cover for their conduct when discharging their duties. To ask someone to offer a bribe in the knowledge and belief that their actions were unlawful would place these personnel in an invidious position, even if no prosecution followed.

The defence makes it clear that, should a person exercising a relevant function set out in Clause 12(1)(b) or 12(1)(c) ever be charged with an offence, he or she

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would have a defence that could be put before the court. Clause 12 will also assist prosecutors in deciding whether a prosecution should be brought.

So when there is a suspicion that someone has committed the offence of bribery under the Bill, the first thing that will happen will be that the prosecutor looking at whether a charge should be brought and the prosecution continued will look at the defence in Clause 12 and decide whether a prosecution should be brought in those circumstances. If they decide-as they nearly always will, one might surmise-that a prosecution will not be brought because it comes under the defence in Clause 12, then the matter will not go to court. The further protection for someone when the prosecutor looks at a case and decides that it should go to court, because they are not satisfied that it falls within Clause 12, will be the jury. That person will have the chance to persuade a jury, on balance, that they too are covered by Clause 12.

The noble Lord, Lord Thomas, said that the defence cannot work. He assumes that the only value of the defence is in the course of the trial, but that is not the case. As well as providing the legal certainty we should be seeking for the intelligence services and Armed Forces, the defence provides a clear pointer for prosecutors when deciding whether or not to charge a person with an offence under the Bill. Can the defence work? The noble Lord thinks that it cannot, but Parliament has already approved something very similar in Section 1(1)(b) of the Protection of Children Act 1978.

Lord Thomas of Gresford: We are not dealing with pornography. We are not dealing with secret documents. We are not dealing with overseas matters such as what is happening in Afghanistan or Iraq. We are dealing with something that is open in any event. The child pornography analogy simply does not work.

Lord Bach: It is precisely the same sort of defence. It is set out in the same way as the defence that we are proposing in the Bill. We remain convinced that there is a need for the Bill to cater for those who work for the intelligence services or who are members of the Armed Forces who would otherwise be at risk of prosecution under the Bill in performing their vital functions on behalf of all of us. Indeed, the Joint Committee that scrutinised the 2003 draft Corruption Bill appeared to accept the need in principle for a provision relating to the intelligence services.

Clause 12 provides that legal certainty and transparency in the form of a defence that will apply only where the conduct is assessed as necessary in accordance with the respective functions of the intelligence services and Armed Forces. Ultimately, whether the defence case is made out will be a matter for the court or jury.

Amendment 20 would limit the operation of the defence for the intelligence services to functions relating to national security. We believe that this would undermine the ability of the intelligence services to combat all relevant threats to the United Kingdom. The defence for the intelligence services in Clause 12(1)(b) correctly, in our view, applies to,



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Parliament has conferred statutory functions on the Security Service relating to national security, economic well-being and acting in support of law enforcement agencies in the prevention and detection of serious crime, while in the case of GCHQ and SIS, Parliament has determined that their respective functions should be exercisable for the purposes of national security, the economic well-being of the nation and the prevention and detection of serious crime.

We are very concerned to respect our international obligations to combat bribery and we are confident that the defence, as currently drafted, is consistent with our obligations and, in particular, with the relevant OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions. As I made clear in the previous debate, we have specifically excluded from the definition of a "relevant bribery offence" for the purposes of this clause conduct that would amount to an offence under Clause 6 of the Bill; that is conduct that would amount to the bribing of a foreign public official with the intention to obtain or retain business or an advantage in the conduct of business. I hope that that goes some way to satisfying the House, especially my noble friend Lady Whitaker who asked a particular question about that.

Restricting the defence to functions relating to national security is in our view unjustified. Indeed, the proposed amendment goes further than the Constitution Committee, whose report of 4 December appeared to accept that,

But we take issue with the Constitution Committee's earlier criticism of the extension of the defence to the services' statutory function,

as set out in its December report.

As we tried to make clear in our response to the Select Committee, the intelligence services may need to take action to monitor events and trends to safeguard the well-being of the United Kingdom, which is one of their statutory functions. That could include intelligence or instability in a part of the world where substantial UK economic interests were at stake. It might also concern threats to the supply of energy or other commodities vital to the UK economy; or external attempts to manipulate commercial markets, especially where such actions could undermine confidence in the City of London or the stability of other financial markets.

In answer to the question asked by the noble Lord, Lord Williamson, through the examples that I have given, I have tried to make it clear that not all the matters falling to the intelligence services relate simply to national security, and that there is an operational need for the defence to cover the full range of statutory functions, including economic well-being and the prevention and detection of serious crime. I welcome the fact that in its latest report, hot off the press today, the Constitution Committee seems to have accepted, or at least not disputed, the Government's explanation for including the intelligence services' economic well-being function.



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On Amendment 21, which seeks to strike out the defence as it applies to the functions of the Armed Forces, we regard it as just as important that we should not criminalise conduct that would amount to bribery by those performing functions of the Armed Forces where it is necessary for the proper exercise of those functions during active service. There may be occasions in the course of military operations when conduct that would amount to bribery under the Bill will be required. We can all think of examples-to secure critical intelligence or assistance in support of operational effectiveness or to ensure the safety of military personnel. Service personnel should not be put in a position whereby they have committed a criminal offence under the Bill by the proper performance of their duties. That would put their commanders in an impossible and unacceptable position when issuing orders.

This House always recognises the dedication, professionalism and sacrifice of members of the Armed Forces and we owe a considerable debt to the members of our Armed Forces on active service. Clause 12(1)(c) provides the appropriate legal certainty that where members of the Armed Forces are faced with difficult operational circumstances that require the use of financial or similar inducements to achieve their objectives, they will not risk prosecution.

We have listened and responded to the concerns about the breadth of the clause as drafted. On further reflection, we are content to make a significant change to the clause by removing the limb of the defence that applies to law enforcement agencies. To answer the noble Lord, Lord Henley, the police will have to rely on prosecutorial discretions. But we remain firmly of the view that it is essential for the effective operation of the intelligence services and Armed Forces that we retain the defence as it applies to them. I hope that what I am saying will be taken seriously: Clause 12, in its amended form, is for the Government a vital and crucial part of this Bill.

I invite the House to accept the government amendment and agree that the clause should otherwise remain as it is. If the noble Lords, Lord Goodhart and Lord Thomas, were minded to press either of their amendments to a Division, I strongly urge the House to reject them.

Amendment 19 agreed.

Amendment 20

Moved by Lord Goodhart

20: Clause 12, page 8, line 8, leave out "any function of" and insert "functions relating to national security by"

Lord Goodhart: My Lords, I propose now to ask for the opinion of the House on something that will be short and simple. We have had a very long debate on a number of scattered provisions and problems arising from Clause 12, to a degree that was wholly unexpected. Certainly, I was not expecting it and I doubt that the Minister was. Amendment 20 raises only one short and simple issue. I am not proposing to call a vote on Amendment 21. The question is: should the functions of the security services include using bribery to obtain

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information relevant to protecting the economic well-being of the country, but not relevant to national security or the prevention of serious crime? We say that the function of the security services should not be extended to bribery which is solely for the purpose of protecting economic well-being; that is the purpose that would be achieved by Amendment 20. I wish to take the opinion of the House.

8.01 pm

Division on Amendment 20

Contents 41; Not-Contents 111.

Amendment 20 disagreed.


Division No. 1


CONTENTS

Addington, L.
Alderdice, L.
Alton of Liverpool, L.
Best, L.
Bonham-Carter of Yarnbury, B.
Burnett, L.
Chester, Bp.
Clement-Jones, L.
Dykes, L.
Goodhart, L.
Harris of Richmond, B.
Jones of Cheltenham, L.
Lee of Trafford, L.
Livsey of Talgarth, L.
Maclennan of Rogart, L.
Mar and Kellie, E.
Miller of Chilthorne Domer, B.
Neuberger, B.
Newby, L.
Nicholson of Winterbourne, B.
Northover, B.
Oakeshott of Seagrove Bay, L.
Roberts of Llandudno, L. [Teller]
Rodgers of Quarry Bank, L.
Sharp of Guildford, B.
Shutt of Greetland, L. [Teller]
Smith of Clifton, L.
Steel of Aikwood, L.
Stoddart of Swindon, L.
Teverson, L.
Thomas of Gresford, L.
Thomas of Walliswood, B.
Thomas of Winchester, B.
Tonge, B.
Tope, L.
Tordoff, L.
Tyler, L.
Vallance of Tummel, L.
Wallace of Tankerness, L.
Walmsley, B.
Walpole, L.

NOT CONTENTS

Adams of Craigielea, B.
Alli, L.
Anderson of Swansea, L.
Andrews, B.
Archer of Sandwell, L.
Bach, L.
Bassam of Brighton, L. [Teller]
Berkeley, L.
Bilimoria, L.
Billingham, B.
Bilston, L.
Borrie, L.
Bradley, L.
Bragg, L.
Brett, L.
Brookman, L.
Campbell-Savours, L.
Carter of Coles, L.
Colville of Culross, V.
Corston, B.
Craigavon, V.
Crawley, B.
Davidson of Glen Clova, L.
Davies of Coity, L.
Davies of Oldham, L. [Teller]
Desai, L.
D'Souza, B.
Dubs, L.
Elder, L.
Elystan-Morgan, L.
Evans of Parkside, L.
Farrington of Ribbleton, B.
Faulkner of Worcester, L.
Filkin, L.
Gale, B.
Gibson of Market Rasen, B.
Golding, B.
Gould of Potternewton, B.
Graham of Edmonton, L.
Grantchester, L.
Grenfell, L.
Griffiths of Burry Port, L.
Grocott, L.
Harrison, L.
Hart of Chilton, L.
Haskins, L.
Haworth, L.
Hilton of Eggardon, B.
Hollis of Heigham, B.
Howie of Troon, L.
Hoyle, L.


2 Feb 2010 : Column 186

Hughes of Woodside, L.
Hunt of Kings Heath, L.
Jones, L.
Jones of Whitchurch, B.
Kinnock, L.
Kinnock of Holyhead, B.
Kirkhill, L.
Layard, L.
Lea of Crondall, L.
McDonagh, B.
McIntosh of Haringey, L.
McIntosh of Hudnall, B.
Mackenzie of Framwellgate, L.
Mallalieu, B.
Martin of Springburn, L.
Massey of Darwen, B.
Maxton, L.
Mayhew of Twysden, L.
Monson, L.
Moonie, L.
Morgan of Drefelin, B.
Morris of Yardley, B.
Moser, L.
Pannick, L.
Patel, L.
Pendry, L.
Pitkeathley, B.
Ponsonby of Shulbrede, L.
Prosser, B.
Puttnam, L.
Quin, B.
Radice, L.
Ramsay of Cartvale, B.
Rea, L.
Rendell of Babergh, B.
Richard, L.
Robertson of Port Ellen, L.
Rosser, L.
Rowe-Beddoe, L.
Rowlands, L.
Royall of Blaisdon, B.
Scotland of Asthal, B.
Sewel, L.
Sheldon, L.
Simon, V.
Smith of Leigh, L.
Soley, L.
Stair, E.
Stone of Blackheath, L.
Symons of Vernham Dean, B.
Taylor of Bolton, B.
Thornton, B.
Tomlinson, L.
Tunnicliffe, L.
Warwick of Undercliffe, B.
Waverley, V.
Whitaker, B.
Whitty, L.
Williamson of Horton, L.
Woolf, L.

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