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Bribery Bill [HL]

The amendment relates to facilitation payments. The issue was touched upon in our debates in Grand Committee, mainly in the context of British individuals or companies operating abroad. This new clause would give a defence to acts of bribery committed under Clauses 1, 2 or 6, although it may be most useful in relation to Clause 6 offences. Again, I do not intend to press this amendment to a vote. Among other considerations, I am fairly sure that the parliamentary draftsman might consider the drafting to be technically deficient. The Minister, however, may find this a useful opportunity to make clear the Government’s position on these payments, which are, at the very least, ambiguous in their nature. A clearer definition of what payments are illegal would mean that companies were better protected against extortion by public officials in foreign countries, and this could allow those companies to draw a clear line in the sand to stand behind. I tabled this amendment as part of our efforts to clarify provisions in the Bill and I look forward to hearing from the Government in due course. What I have described as "facilitation payments" have been touched on in debates at previous stages. They might be regarded as payments made to ease a transaction that is already due to take place, rather than payments made to influence a decision to have a transaction in the first place. In the previous group of amendments we considered the intention of the payer, which we shortened to "P", and I asked noble Lords to consider the situation where P was making a payment quite properly—at least, as far as he was concerned. I accept that facilitation payments are on slightly shakier ground. In most scenarios, so-called facilitation payments are regarded as bribes and are therefore illegal in almost every country. However, there may be situations in which an individual or company is placed in an invidious position where the official who ought to be performing a task is not doing so and that individual or company feels that by making a payment they are doing nothing wrong—or at least that they have no choice. I accept that such situations might arise in other countries, but I have related the amendment to domestic offences as well for completeness. Noble Lords will be aware that certain types of payment in that sort of situation are allowed under United States law, or at least they would not be prosecutable. In the United States, facilitation payments are seen as a form of tip. There are conditions that must be satisfied for a payment to fall into the category of those that ought not to be prosecuted. My amendment attempts to summarise those conditions. First, the payment would be, ""necessary to expedite a routine government action or to prevent damage to an important commercial interest"." That means that a payment that is intended to alter the substance of an official’s decision would not be covered by the amendment. But in a scenario where an official refuses to hand out a permit to which a person is entitled until the official has been given a sweetener, a person would have recourse to the defence. An example of that second type might be the lorry driver trying to get a load of fresh fruit or vegetables through customs. If he is put in a long queue by customs officials and made to wait for days to the extent that he might lose the produce, he might reasonably feel that there is nothing wrong with giving a few dollars to that official—the few dollars that the official expects—to allow him on his rightful way. The amendment contains other conditions. The payments must be "modest in amount". It must be "a single payment" not an ongoing chain of transactions. It must be "customary in the situation", and making a facilitation payment must be, ""the only reasonable option in the circumstances"." Those conditions are designed to reflect the difficult position in which a person might find himself, as in my example. It is not unrealistic to expect that an otherwise law-abiding person or company would feel that they had no option but to make a small payment to help things along. I am obviously aware of the message that the Government and we wish to send out with this Bill that it is in no one's interest to encourage petty bribery and corruption. However, that might not be a useful thing to tell the lorry driver with a load of bananas whose fruit is rotting at the border because the customs officials have not yet been informed of that message that the Government and we are trying to get out in the Bribery Bill. I believe that the rule of thumb in the United States—again the noble Lord may be able to assist me on this—is to turn a blind eye to payments under, for example, $50, and consider them as tips. I understand why the Government may not wish to turn a blind eye to the practice and, as I said, this is not something on which I will test the will of the House this afternoon. However, will the Minister respond to those points by clearly laying out what approach the Government will take to small facilitation payments? That may be a question purely for the prosecutorial discretion that we have heard about before, but, if so, what considerations will the prosecuting authorities take into account? A great many United Kingdom companies would prefer not to have the temptation to indulge in that kind of facilitation payment. They certainly wish to behave ethically. However, can the Minister inject any certainty into the debate that would give companies the reassurance that every situation will be dealt with practically and fairly on a case-by-case basis? I am seeking extra clarity from the Government in so far that the Bill extends to persons who may feel they have no option but to make payments in circumstances that amount to little short of extortion. I beg to move.