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To my mind, that is the way to go about it. If the security services have sensitive information and need to make a submission to, say, the director of the Serious Fraud Office, surely it is better that it is made at an early stage so that the relevant person, the Director of Public Prosecutions of whoever it may be can consider what is put before him and decide whether it is in the public interest that the prosecution should go forward. There is nothing unusual in that because the two-pronged test of the Director of Public Prosecutions
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It is right that the prosecutorial discretion will now rest with the directors of the various agencies such as the Serious Fraud Office, HMRC and the DPP. We do not agree that the Attorney-General should play any further part in an individual case. I know that the OECD does not control this country, but it has recommended in specific terms that we should ensure, in any amendment to our legislation, that the Attorney-General cannot give instructions to the director of the Serious Fraud Office about individual bribery cases. That is in no way binding upon us, but we should try to remove prosecutions from any political connection. I regard it as unhappy and unhelpful that the redefining of the role of the Attorney-General has been removed from the Constitutional Reform and Governance Bill now in another place, but that is an argument for another time.
I have made some criticisms of the Bill. However, I repeat that it is a good Bill and we on these Benches will do our utmost to ensure that it goes through expeditiously before this Parliament comes to an end.
Lord Henley: My Lords, I suspect that the Minister will be relieved to introduce a Bill from the Ministry of Justice at last that has not been met with dismay and criticism from all around the House. It is not, for once, one of those Christmas-tree Bills that we expect to come from that department, when this issue and that issue-all unrelated-are added together, leading to some rather confused debates on Second Reading and rather bad legislation at the end. It is not part of what the noble and learned Lord, Lord Woolf, described in the Queen's Speech debate as a "torrent" of legislation. It is a single-issue Bill that deals with one discrete subject. The Ministry of Justice should perhaps make more use of Bills referred to by the noble Lord, Lord Williamson, as clean-sweep Bills. That is a good description of a Bill that deals with just one issue and removes other Acts from the statute book, possibly making the statute book better. The noble Lord and his department will find it easier to get their legislation, which will be better legislation, should they follow that line in future.
However, no one could accuse the Government of having produced this legislation in haste. My noble and learned friend Lord Mayhew complained that 10 weeks was perhaps too short a time for the committee to have considered the Bill and that a little more time might have been necessary. It has taken more than a decade for the Government to come up with this Bill since it was first promised. It was the Minister's boss, now the Lord Chancellor and Secretary of State, Jack Straw, who published a paper on consolidation and amendment of the Prevention of Corruption Acts in
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We then had the Joint Committee, which was chaired, as many noble Lords, including my noble and learned friend Lord Mackay of Clashfern, have said, by the late Lord Slynn. The committee, which was commissioned to examine the Bill, found that its approach to corruption was fundamentally flawed. The Bill was then withdrawn and the Law Commission was asked to draft a new Bill. It was not until March 2009-nearly 12 years after the Government first promised a unified corruption Act-that the draft Bribery Bill was published. That was then considered by the committee chaired by my noble friend Lord Colville of Culross. I join all Members who have spoken today in congratulating my noble friend on chairing that committee. I should say "the noble Lord", but I say "my noble friend" because many years ago I sat at his feet as his pupil, although I am not sure that much of his talent rubbed off on me.
I congratulate the noble Lord on his committee's report and those other Members of the House, including the noble Lords, Lord Goodhart and Lord Thomas of Gresford, my noble and learned friends Lord Lyell and Lord Mayhew, my noble friend Lord Onslow and the noble Baroness, Lady Whitaker, on their sterling work on that committee.
As the Minister pointed out in his introduction, bribery has been illegal under United Kingdom domestic law for centuries and a process of ad hoc reform has led to a patchwork of offences under the common law, the Public Bodies Corrupt Practices Act 1889, the Prevention of Corruption Act 1906 and the Prevention of Corruption Act 1916. There have been few developments in the law for more than 90 years, aside from the jurisdictions of these offences being extended in 2001 to include acts committed abroad by United Kingdom citizens and companies.
I am grateful to the Minister for confirming that we are nevertheless compliant with our international obligations. I note that the noble Lord, Lord Thomas of Gresford, disagreed on that point. No doubt that is something that we can explore at a later stage.
We all recognise that, when the Joint Committee was taking evidence in its scrutiny of the draft Bill, all witnesses supported the case for reform, reflecting calls that were first made by the Royal Commission on Standards in Public Life some 30 years ago. Particular criticisms of current law include the use of inconsistent terminology, the artificial divide between public and private sectors and the focus on whether or not an individual is acting as an agent on behalf of a principal, a concept which is both complex and leaves gaps in the law.
I understand that few individuals have been prosecuted under the existing bribery legislation in recent years, as I am sure the Minister will be able to confirm in due course, although a number of allegations have been pursued as part of a fraud charge. No company has ever been convicted under the current law aside from Mabey and Johnson, which recently pleaded guilty to making corrupt payments after self-reporting them to the Serious Fraud Office. The fact that this does not reflect the scale of the problem represented by bribery may in part be attributed to the difficulties in gathering evidence in support of a prosecution, as my noble and learned friend Lord Lyell made clear.
Briefly, although we are broadly satisfied with this Bill and feel that it is worthy of our support, we will look at the fine detail in Grand Committee, as the Minister and the House would no doubt expect us to do.
We have concerns about how the Bill is framed and we will probe, for example how Clause 7 will work in practice. An offence of omission is being created for companies that do not prevent bribery. The defence is vague. We will probe what is meant by "adequate procedures". One of the core aims of this legislation must be that it is clear and unambiguous. We have heard representations from businesses that seek assurances that they are not going to be left in difficulties because of the change in the law. A great deal may hinge on what sort of guidance is put in place, rather than on the wording of the Bill, and we will certainly be looking at putting down amendments to elicit more information from the Government on this. I was therefore interested that so many noble Lords mentioned the need for guidance; the noble Lord, Lord Williamson, and others particularly stressed its importance. The noble Viscount, Lord Colville of Culross, stressed the importance of the timing of that guidance and of ensuring that it is in place before the Bill comes into force. That it is certainly something that we would want to look at in detail.
We will also examine carefully, as my noble and learned friend Lord Mackay of Clashfern put it, the safeguards that are in place before a prosecution can be made. There are very differing views on what the role of the Attorney-General, as opposed to the three directors, should be; the view of the noble Lords, Lord Goodhart and Lord Thomas of Gresford, was different from that of my noble and learned friends who are sitting behind me. No doubt, again, we can debate the matter in Grand Committee, where we shall want to look at it carefully.
The Minister, my noble and learned friend Lord Mackay of Clashfern and others referred to the report of your Lordships' Constitution Committee, chaired by my noble friend Lord Goodlad, which is highly critical of Clause 12. Virtually every noble Lord has mentioned Clause 12; I shall not repeat their names. The issues of whether there should be defences for the security services and law enforcement agencies, how wide they should be and whether they will need the consent of a Minister will take up a good deal of our time when we come to deal with them in Committee.
A great many other issues will arise. The Minister referred to parliamentary privilege, although others said that that issue might be for another day and
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Having said that, I think that this is a rare example of a Bill that is destined not to change much during its passage through the House. We will wish to examine its provisions thoroughly and we may have to make changes in that process, but, I repeat, we support the Bill and will do our utmost to ensure that it gets on to the statute book before the general election, whenever that might take place.
Lord Bach: My Lords, it is a rare-even unique-pleasure for a Minister on the Front Bench to hear such unanimous support for a government Bill. I am not sure that I know enough to say whether I agree with the noble Lord, Lord Williamson, that this is a love fest-or to disagree with him in the way that my noble friend Lord Borrie chose to do-but it must come fairly close to it. I thank all noble Lords who have participated in the debate with a special emphasis and a special conviction. It is clear that the Bill attracts broad cross-party support and that all who have spoken believe that it will provide the robust law that our prosecuting authorities and courts require and will considerably enhance this country's standing in the international arena.
The noble and learned Lord, Lord Mayhew, almost apologised not only for his cough-which I have, too-but for his grouse at the beginning of his speech; he said it was a minor grouse. However, it was a well-made point about the challenging, as we described it-he had another word for it-timetable that the Joint Committee had to face. Two points can be made about that: first, that it makes the conclusions of the Joint Committee even more impressive; and, secondly, that without the timetable it might not have proved possible to bring the Bill before the House and, it is to be hoped, into law during this truncated Session. The Joint Committee's work on the Bill is as good an advertisement for pre-legislative scrutiny as there has been so far. Once again, the Government thank the noble Viscount and his team for what they did.
We have listened this afternoon to the many substantial points that have been made and I assure the House that we will consider them with care and do our best in Committee to answer them where we feel it right and to concede to them where we feel it right as well. Let me answer one or two of them this afternoon.
The noble Viscount talked about Scotland. I agree that it is very good news that the Bill will extend to Scotland and I am pleased to say that we have reached agreement on this with the Scottish Government, subject, of course, to the Scottish Parliament publishing the necessary legislative consent Motion, usually named after my noble friend Lord Sewel. As with the Crown dependencies, it will be for them to update the law in the normal way. We are in regular discussions with
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Turning to the complexity of definitions, the noble and learned Lord, Lord Lyell, argued that the general bribery offences in Clauses 1 to 5 were too complex. It is true that, superficially, bribery may be regarded as a straightforward concept, but for the purposes of the criminal law, drafting an offence which is wide in scope at the same time as being readily understood and legally certain is a challenge. There has been other support, from the noble Lord, Lord Williamson, and other noble Lords including the noble Viscount himself, who argued for abandoning the inherently difficult and vague concepts of agent/principal and acting corruptly, found in the existing legislation, and adopting the offence as recommended by the Law Commission. The Law Commission consulted widely on this and possible alternatives and concluded that the improper conduct test was the best possible option and the Joint Committee endorsed that approach. We hope that we have adopted a careful balance between simplicity, certainty and effectiveness.
On facilitation payments, the noble and learned Lord, Lord Mackay, and the noble Lord, Lord Williamson, questioned whether such facilitation payments would be caught by the offences in the Bill. It has also been suggested that criminalising facilitation payments could put UK businesses at a disadvantage compared to their US counterparts, given the Foreign Corrupt Practices Act in the US. Facilitation payments are already caught by the offences contained in the current law and the Bill does not seek to change that position. We are adamant that our objective must be to address bribery in all its forms. We are not unaware of how the real world works, but we believe that tackling petty bribery in itself is a key element in changing the culture of corruption. In the UK, as at present, prosecution will depend on whether the evidential and public interest tests in the code for Crown prosecutors have been satisfied. That code does reflect the principle of proportionality-it may not be in the public interest to prosecute where payments are small; much will depend on the particular circumstances. However, those who continue the practice of making such payments have to be aware of the continuing risk of prosecution. Providing exemptions for facilitation payments, as the US does, is not a universally accepted practice. Such exemptions do create artificial distinctions that are difficult to enforce and have the potential to be abused. Indeed, the OECD, much mentioned in the debate, is today launching a recommendation on this very issue. It highlights the corrosive effect of small facilitation payments and recommends member countries undertake periodically to review their policies on small facilitation payments to combat the phenomenon and to encourage companies to prohibit their use. We do not apologise, then, for the tough stance that we are taking in the Bill, but we very much take the points that have been made in the debate.
There is of course an issue around the position of the Attorney-General and her role in bribery prosecutions, and different views on that issue are seriously held around the House. I would point out that the prior consent of the appropriate authority before proceedings
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I turn to Clause 7, and the issues around adequate procedures and guidance. A number of noble Lords discussed that issue, including the noble Lords, Lord Goodhart and Lord Williamson, the noble and learned Lord, Lord Woolf, and the noble Viscount, Lord Colville. That adequate procedures defence is designed to be flexible. It is not defined in the Bill, as specific procedures will depend on the size of the organisation, the relevant business sector and the degree to which the organisation is engaged in high-risk markets. The House will appreciate that what is appropriate in a large organisation to prevent bribery may not be appropriate in a smaller organisation, so the procedures should, we think, therefore be proportionate to the circumstances of the particular organisation.
We intend to publish guidance that draws on the knowledge and expertise of stakeholders. We intend it to cover the Clause 7 offence, particularly the adequate procedures defence. However, the guidance will not set out detailed prescriptive standards; rather, we intend it to be indicative by setting out broad principles and illustrative good practice examples of adequate procedures. We also intend the guidance to be available well in advance-there, I have used that phrase again-of the implementation of new offences. The CBI, in its briefing to noble Lords, said that it welcomed the defence of having adequate procedures in place to prevent bribery, and broadly supported that approach. On what constitutes adequate procedures, it welcomed the fact that the Government have agreed that official or non-statutory guidance must be provided, containing broad principles and illustrative best practices. It said that it was also welcome that there appears to be recognition that different sectors operate in different contexts, and that such non-statutory guidance will be produced after the Bill has received Royal Assent but before the offences come into force. The Government are pleased that the Confederation of British Industry has that view of that issue.
There has been a suggestion-the noble Lord, Lord Thomas of Gresford, spoke on this-that a central advice facility, similar to that provided by the United States and Hong Kong, might be beneficial here. The Joint Committee obviously thought about that a lot, and heard evidence on it. It recognised that such an advisory service could be beneficial, but in the end noted that there might be difficulties in establishing such a service in this country, and was concerned about the impact on the independence of prosecutors in particular. We agree with it on that issue and do not think it appropriate for our criminal justice system.
Having said all that, the director of the Serious Fraud Office has indicated that there would be occasions when his office would discuss points of general principle
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The noble and learned Lord, Lord Lyell, mentioned Article 45 of the EU procurement directive. He asked whether conviction for the Clause 7 offence would trigger mandatory exclusion from participation in a public contract under that article. The article provides that any candidate or tenderer who has been convicted of certain offences, including fraud and corruption,
and a discretionary approach shall apply for all other offences. We believe that being convicted of a Clause 1 or a Clause 6 offence will trigger the mandatory exclusion, as those offences will fall within the ambit of the directive. It would be appropriate for mandatory exclusion to follow, given the complicity on the part of those who manage the organisation and company.
I tell the House, and the noble and learned Lord in particular, that we are presently considering whether a conviction for the Clause 7 offence would fall within the ambit of the directive. In such cases, the culpable conduct on the part of the organisation is not bribery in itself but rather a failure to prevent bribery. I hope and expect to have a definitive answer to the noble and learned Lord's excellent question on this issue by the time we have reached Clause 7 in Committee.
The Earl of Onslow: Will the Minister help me? If a company is badly convicted of one of these offences, is it no cause for redemption if everybody, including the officers concerned, are cleansed and the company shows that it has reformed and made itself clean and upright?
Lord Bach: I hope that the noble Earl will not press me on that tonight. It is one of the matters that we will have to consider in deciding what our attitude is towards an offence under Clause 7. However, it is an important point.
I turn to the failure on the part of a commercial organisation to prevent bribery, joint ventures and syndication. The noble Lord, Lord Goodhart, referred to this. He asked about the operation of the corporate offence in relation to the activities of a joint venture over which a company might not have real control. The noble and learned Lord, Lord Mackay, mentioned this point too.
It is indeed possible for one person, or a number of people, to be deemed to be performing services on behalf of more than one company. That is sensible if the Bill is to be effective. It depends on the circumstances but it may be that a bribe by a person performing services for one company in a joint venture is rightly regarded as being paid in connection with the business of any of the companies involved in that venture.
Our purpose is clear: we want to encourage organisations which are involved in joint ventures to ensure that they are satisfied that adequate procedures are built into the arrangements for their joint venture.
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I will say comparatively little about Clause 12 tonight. I am delighted to see the noble Lord, Lord Goodlad, in his place. I thank him and his committee again for their report. A number of issues arise around Clause 12. I was extremely grateful for the speech of the noble Lord, Lord Patten, at least as far as it concerned this particular clause. He is not absolutely alone. He has me for company at the present time, in defending Clause 12.
The first issue is whether Clause 12 is drafted too widely. My noble friend Lady Whitaker believes it is and many other noble Lords think it is too. She was kind enough to acknowledge that we had already come a long way in meeting the reservations of the Joint Committee.
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