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Bribery Bill [HL]

My Lords, we are grateful to the noble and learned Lord for tabling these amendments. They amend the Bill’s general bribery offences by introducing a requirement of "corrupt intent". Amendment 1 provides that in order to amount to an improper performance of a relevant function, as defined in Clause 4 for the purposes of Clauses 1 and 2, the function must not only amount to a breach of a relevant expectation but must be performed "with corrupt intent". Amendment 2 requires that the performance "demonstrates corrupt intent" if it is an improper performance by virtue of a failure to perform the function. The noble and learned Lord, Lord Lyell of Markyate, has, throughout the Bill, expressed concern about the complexity of the definition of bribery used in it and has suggested that we should rely on references to "corrupt intent" in order to inject more clarity. There is broad agreement around the House that these offences must be formulated with as much clarity and certainty as possible, but we remain unconvinced that these amendments would achieve that outcome. In Committee, we made it clear that we see no benefit in remaining wedded to the concept of "acting corruptly" as found in the existing legislation. It is a vague and unhelpful construct that has spawned a number of different and often inconsistent interpretations from the courts. The only attempt at a definition— ""doing an act which the law forbids as tending to corrupt"—" is not very helpful. We remain of the view that the Law Commission came to the right conclusion when it found that the lack of clarity surrounding this concept weakened the effective application of the law. The Law Commission’s research and consultation on this point and on the other options for formulating the general offences was detailed and thorough. Its conclusion was that offences based on the improper conduct model were the best option. Following the Law Commission’s work, the Joint Committee—of which the noble and learned Lord was a distinguished member—chaired by the noble Viscount, Lord Colville, who is in his place, scrutinised the Government’s draft Bribery Bill, which was, as the House knows, based on the Law Commission’s proposals. That committee fully endorsed the improper performance test. I am sure that noble Lords who have participated in the debates on this Bill will now be familiar with the way the general offences work, but I shall briefly recap. A bribery offence is committed where a financial or other advantage is offered, promised or given and is linked to the improper performance of a relevant function or activity. The impropriety arises from a breach of an expectation that the relevant function or activity is to be carried out in good faith and impartially or that the person performing it is in a position of trust. Clauses 1 and 2 set out six cases of bribery that follow this model, and that can be readily understood and provide the legal certainty required of the criminal law. Juries are perfectly capable of dealing with concepts such as "good faith", "impartiality" and "position of trust" when considering them in the context of a particular case, so these terms do not require definition. The noble and learned Lord suggested that no mens rea was necessary in these cases, but that is not entirely correct. Clause 1 requires the prosecution to show an intention in case 1 and knowledge or belief in case 2, and Clause 2 requires the prosecution to show the recipient’s intention in case 3. All those obviously have mens rea elements, but it is right that cases 4 to 6 in Clause 2 have no mens rea element. We share the Law Commission’s view, which is endorsed by the Joint Committee that undertook the pre-legislative scrutiny, that the recipient’s—R’s—knowledge and intent should be immaterial to whether an offence has been committed in cases 4 to 6. Clause 2(7) makes this explicit. R is the best person to understand the expectations to which he or she is subject. If R could avoid liability on the ground of lack of mens rea, it would create a significant grey area that might be exploited in cases in which the recipient was aware of the expectations that applied, as it would be much easier for the recipient to claim ignorance of the fact that his or her conduct constituted a breach of an expectation than it would be for a prosecutor to prove that the recipient was aware that it did. I hope the House finds helpful the analogy of gross negligence manslaughter. A person can be convicted of gross negligence manslaughter regardless of whether they recognised that their conduct would amount to a breach of a duty to take care. The noble and learned Lord’s boarding pass example is very similar to the experience of the noble Lord, Lord Swinfen, a few years ago, and to what has been described as a facilitation payment. We will discuss facilitation payments in our debate on the third group of amendments. The conduct to which the noble and learned Lord referred could be an offence under Clauses 1 and 2 because, as we said in Committee, we think it appropriate for minor cases such as this to be dealt with by prosecutorial discretion. However, I have no doubt that there will be more discussion about this type of case when we debate Amendment 5, which I hope we will come to shortly. I will sum up the Government’s response to the noble and learned Lord’s amendment, and will of course give way if he wants to ask me a final question. He has his own views on this. I am grateful to the noble Lord, Lord Henley, for having clearly expressed his sympathy for his noble and learned friend’s amendment, and for the fact that in the end he cannot support him on this. We have looked at this on a number of occasions, and I hope that the House can make progress on the basis that it would be inappropriate for the Government to alter their course at this stage of the process, given the Law Commission’s very firm recommendation and the Joint Committee’s support for the improper conduct model, as reflected in Clauses 1 and 2. I know that these were probing amendments, so I am sure that the noble and learned Lord will not press them, but I think he may have a quick question for me.