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Bribery Bill [HL]

My Lords, I shall speak also to Amendment 4. These amendments have been tabled as a refinement to amendments tabled to Clause 6 in Grand Committee. They are intended to refer to the impropriety test that is present in the offences created by Clauses 1 and 2, which we have just been discussing. Clause 6 turns on the question raised by subsection (3)(b); that is, whether a payment by person P to a foreign official F constitutes a bribe depends on whether F was permitted or required by written law to accept a payment. There is no question of what motivated P or what his intention was beyond securing himself a business advantage. To put it briefly, to secure a business advantage is a normal and accepted practice, so long as it is legitimate and proper, as the Minister will well appreciate. In Grand Committee and in our previous debate on the amendments in the name of my noble and learned friend, we looked at the meaning of the word "corrupt". My noble and learned friend again put forward a cogent argument. However, we on the Front Bench accept the conclusion of the Law Commission that there is a lack of clarity around what is meant by corruption. I indicated in Grand Committee that we would be content for Clauses 1 and 2 to stand part of the Bill with the test of impropriety as the Government had drafted it. Even then, the noble Lord said that impropriety is readily capable of being understood by juries in the relevant context of the case without further deliberation. For that reason, we are happy with the notion of "improper" but we believe that it should be considered by the Government for inclusion in Clause 6. The intention of P—the payer of the alleged bribe—ought to matter. I am concerned that it is not enough to say that all P must have intended was to secure some business or business advantage and that whether or not he is guilty of bribery rests on the interpretation of local written law. No question is asked about whether or not P was acting improperly but merely if the recipient official—F—went against what was permitted or required by written law. The Government have put forward the principle that P’s ignorance of the local law should not be a defence, but will it always be possible to say exactly whether a local law was broken? I return to the thorny question of hospitality payments. If, for example, a company was to entertain a foreign official in the process of demonstrating a product, a question might arise about what kind of hospitality should be given. If the foreign official’s governing law stated that he may accept reasonable hospitality, would a case then be decided on how lavish—or, for that matter, how mean—the hospitality provided would be considered? In Grand Committee, my noble friend Lord Onslow, who is not in his place, posed the question of whether an all-inclusive trip to the Happy Eater would produce a different outcome from a trip to the Onslow Arms. That may seem a rather trivial point to make, but would not clarity be better achieved by examining what P intended in the first place? I should perhaps say O rather than P in the case of my noble friend Lord Onslow, but I shall leave it at P. The situation may be more complex than the Government recognise in relation to the identification of exactly who is a foreign public official. For example, it is not immediately clear whether the phrase covers individuals in government-run or majority-owned businesses, or other categories of people who may fall under the ambit of that definition. As an illustration of that latter point, in the pharmaceuticals sector, to the extent permitted by local laws in each relevant country, companies operate in line with strict internal codes which usually observe global industry standards around the engagement of healthcare practitioners. In many countries, healthcare practitioners would come within the definition of a foreign public official. The Bill could therefore criminalise what is currently the honest, lawful, well intentioned promotional detailing of products to doctors in countries such as China, where healthcare practitioners will, for the most part, be employees of a state organisation. In these circumstances, a United Kingdom company could, therefore, not only commit a technical offence under this legislation but also be placed at a disadvantage as against foreign competitors. In a letter on 14 January, the noble Lord, Lord Tunnicliffe, who I suspect will reply to the amendment, indicated—I believe that he has placed a copy of it in the Library—that the Government believe it is enough to, ""rely on prosecutors to differentiate between legitimate and illegitimate corporate hospitality and to decide whether or not it would be in the public interest to bring a prosecution"." However, the Government have not addressed the separate but related point about bona fide promotional expenses. A response that relies on prosecutorial discretion under the current wording of the clause may not be enough to address this shortcoming. It would not provide companies with the degree of certainty that we are looking to and that the companies require in the formulation of effective anti-bribery and corruption policies, or in the formulation of guidance to their managers and staff about legitimate practices. It is difficult to see how corporate policies could include advice to employees that something might or might not be technically legal, but may or may not be prosecuted. I have raised a number of points which I should be grateful if the Minister could answer. My amendments would place the focus of prosecutors on the actions and intentions of P. Did he intend to get a business advantage by offering something to F? Undoubtedly; but is that bribery? It would be easier to find the answer by looking at what P was offering and at whether his offer was improper. If it was, he would then have had the improper intention to influence the foreign official, which would be bribery. I put it to the Minister that my amendments, or similar amendments if the Government were minded to look at them again in the drafting discourse, would bring a degree of consistency and certainty to the Bill. I beg to move.