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Bribery Bill [HL]

The issue of facilitation payments was raised in the Joint Committee by the noble Lord, Lord Robertson of Port Ellen, with a particular example in mind and given to the committee. The noble Lord, Lord Borrie, said that he did not care for this amendment. I think that if he was in the position of the noble Lord, Lord Robertson’s master, who was put in an extremely difficult position, he might have welcomed the amendment, ambiguous though it may be. The real point is that the facilitation payment is in no way asking for anything improper to be done by the recipient. It is asking only because it is demanded that the recipient do what he or she is bound to do. The reason for asking for the facilitation payment is that the person who is asking for it is putting an additional condition into the entitlement of the person who is making the payment for getting what the person is entitled to in any event. It is under that kind of heading that facilitation payments have been discussed in the Joint Committee and here. The example given by the noble Lord, Lord Swinfen, is just another of the same kind of thing. It is a situation in which the person paying the money is completely innocent, but is caught in a way that has produced this result for him or her. In the amendment, the situation is described as having no option. Another way of doing it would be to say, as I suggested for consideration at Second Reading, that a defence of duress might be introduced for this kind of offence. It would not be available apart from such an introduction. The principle of the amendment, and what it is aiming at, whatever its imperfections in words—few of us could have drafted it better—are clear enough. The difficulty is that if you introduce facilitation payments and intend them to be covered you cannot talk about "corruption", "corruptly" or "dishonestly" as a general requirement of the offence of bribery, because the people who pay these facilitation payments are the innocent victims of other people’s dishonesty. The only justification that one can have for covering such payments is that it will be the only method available to us in this country of trying to root out a practice which, as the noble and learned Lord, Lord Cullen, says, is not altogether unusual in the world of commerce. That is the approach that the Government have embraced; so far, it has been endorsed by the Joint Committee and, I think I am right in saying, the majority of those who spoke on this subject in Grand Committee. This is a wise policy. One has to take account of the OECD convention. The Americans have made an exception in respect of this sort of payment, and I suppose that it would be in our power to do that. We have chosen not to. We are deciding on an important point of principle in relation to the amendment, but in this matter the government point of view has justification.