---

Bribery Bill [HL]

My Lords, the two amendments tabled by the noble Lord, Lord Henley, seek to introduce an additional and, in our view, damaging qualification into the Clause 6 offence designed to deal with the particularly difficult and pressing problem of bribery of foreign public officials, especially those in developing nations, for commercial purposes. Amendment 3 would require the prosecution to show that the defendant intended "improperly" to influence the foreign public official. Noble Lords will be well aware that the general offences in Clauses 1 and 2 are based on the concept of impropriety. The offence in Clause 6 is deliberately framed differently. Specifically, it quite deliberately avoids reliance on the concept of impropriety, as experience shows that a requirement of this kind creates a major obstacle to achieving successful prosecutions in this narrow category of case. I will come back to that later. On a point of detail, unlike Clauses 1 and 2, the amendment offers no assistance to prosecutors or the courts as to what "improperly" is intended to mean in this context. That creates a danger that the courts would be pressed to consider subjective factors such as the defendant’s state of awareness, knowledge of the local law or the existence of local customs that tolerate bribery when deciding whether the defendant’s intent was improper. That is likely to lead to endless legal arguments and would completely undermine the policy intention behind the clause. Amendment 4 would qualify the nature of the financial or other advantage offered, promised or given to the foreign public official by the defendant. Although the term "improper" here applies to the advantage rather than the defendant’s state of mind, it would nevertheless have a very similar impact to Amendment 3. These proposed changes to Clause 6 are unnecessary and damaging to its effectiveness. We are aware that criticism of the clause focuses on the view that the offence does not sufficiently describe what is properly regarded as corrupt conduct, because there is no requirement of impropriety or dishonesty. We do not accept this criticism. The offence requires the prosecution to prove that the payer intended to influence the official, otherwise described as F, in their capacity as a foreign public official. It is also necessary to show that the defendant intended to obtain or retain business or an advantage in the conduct of business. However, no offence will be committed where the written law applicable to F allowed F to be influenced by the offer, promise or giving of an advantage. The offence is deliberately formulated so as to present a robust response that is commensurate with the gravity of the mischief towards which it is directed; namely, bribery on behalf of business interests in the developed world, seeking lucrative public sector contracts in the developing world. The offence is therefore drafted so as to prevent all but the written law of the state concerned from being a relevant consideration as regards the legitimacy of the payment. The reasons for this are twofold. First, we wish to avoid local custom and practice being a relevant consideration. If our Bill is to make an effective contribution to the efforts at the national and international level to encourage the developing world to abandon the culture of toleration of bribery we need to provide a robust deterrent. This offence is designed to fulfil that need by, among other things, preventing local customs and practice from being prayed in aid as a defence. Secondly, and extremely importantly, the experience of prosecutors working with the current law is that it is extremely difficult to pinpoint with sufficient certainty what duties or expectations apply to any individual foreign public official. Local circumstances vary immensely. The offence is therefore deliberately structured so as to avoid the need to show any improper conduct on the part of the official. Inserting a requirement of impropriety would negate the usefulness of having a specific offence at all. In summary, the offence provides prosecutors with an alternative to a Clause 1 offence that is tailored to the very particular characteristics of this kind of bribery. The effectiveness of the offence for this purpose could be severely damaged by the introduction of a requirement of proof of impropriety. Indeed, it may render the specific offence worthless. On the specific points about hospitality, Clause 6 applies only when the prosecution can prove beyond reasonable doubt that the person intended to obtain or retain business advantage and intended to influence the foreign public official in that capacity. In addition, the public official must be neither permitted nor required by the written law to be influenced in his or her capacity as a foreign public official by the offer, promise or gift. Thus if both forms of intent can be proved and no written law permits or requires a foreign public official to receive advantage, the receipt of corporate hospitality may amount to the commission of a Clause 6 offence by the company concerned, but that will be subject to prosecutorial discretion. As regards marginal cases of bribery, such as this, prosecutorial discretion provides the right balance; it would be a disproportionate response to provide a specific defence that will create additional ambiguity and certainty that could be exploited. The noble Lord raised the specific issue of promotional expenses. Promotional expenditure is an important part of modern business practice and the Government are not seeking to restrict appropriate expenditure of this kind. Whether promotional expenditure will amount to an offence under Clause 6 will depend on the facts, but we accept that Clause 6 may catch some promotional expenditure. Promotional expenditure that is designed to explain and inform potential buyers of a commercial organisation’s products may not involve the transfer of any advantages for the purpose of Clause 6. However, if, for example, benefits that might be regarded as hospitality are included within promotional expenditure, if the local law does not expressly permit or require the receipt of such benefits by officials, the expenditure may be caught by the Clause 6 offence. Whether such a case would proceed would be subject to prosecutorial discretion. We believe that as regards marginal cases this provides the right balance. I hope that the explanations that I have given are appropriate. I think that we will come across the issue of prosecutorial discretion—